Day v Public Trust

[2022] NZHC 2549

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2022-443-054

[2022] NZHC 2549

IN THE MATTER OF

section 76 of the Local Government (Rating) Act 2002

BETWEEN

GREGORY CLIVE DAY

Applicant

AND

THE PUBLIC TRUST

Respondent

Hearing (by Teams):

3 October 2022

Counsel:

H Froude for the Applicant

No appearance for the Respondent

Judgment:

4 October 2022

JUDGMENT OF GWYN J

(Release of funds under s 76 of the Local Government (Rating) Act 2007)

[1]There are two applications before the Court:

(a)an application for leave to commence proceedings by way of originating application (leave application); and

(b)an originating application for the return of the Residue to Mr Day (return application).

[2]        The applications arise from the following facts. Mr Day was the registered proprietor of a property in Manaia (property). The property was sold by the South Taranaki District Council (STDC) on 6 March 2020. The proceeds of the sale were used by the STDC to satisfy unpaid rates on the property. Having cleared all rates

DAY v THE PUBLIC TRUST [2022] NZHC 2549 [4 October 2022]

arrears (and the other matters provided for in s 75 of the Local Government (Rating) Act 2002 (the Act), a balance of $74,649.36 remained (Residue). Pursuant to s 76(1) of the Act the Residue was transferred to the Public Trust on 13 March 2020. Mr Day now seeks to have the residue returned to him.

[3]        The Public Trust was served with the leave application, Return Application and affidavit in support by email on 15 September 2022. The Public Trust has indicated that it adopts a neutral position on both the leave and return applications and will abide any orders made by the Court in relation to those applications.

Originating application

[4]        As Ms Froude, counsel for Mr Day, notes, the return application is not included in the list of proceedings which are authorised to be commenced by way of originating application, set out in rr 19.2 to 19.4 of the High Court Rules 2016 (the Rules). For that reason the leave application is being made pursuant to r 19.5.

[5]        Counsel submits that the use of the originating application is appropriate: this is not a case which requires the availability of interlocutory measures to resolve issues such as discovery. The return application is straightforward and is not opposed by the Public Trust. Originating application is the most inexpensive, speedy method of disposing of the return application. Counsel also notes there is precedent for an application pursuant to s 76(2) of the Act to be made by way of originating application, pursuant to Part 19 of the Rules.1

Return application

[6]        While s 76(2) of the Act is silent as to whom the net proceeds of sale should be paid to, this Court has accepted on at least three previous occasions that the former registered proprietors are the prima facie starting point for consideration of the issue.2

[7]I conclude that such an order is appropriate in this case.

1      Lawson v Public Trust (unreported CIV-2010-412-780, 9 March 2011 High Court Wellington, France J).

2      McLellan v Terry HC Greymouth CIV-2010-418-132, 15 June 2011; and Shera v Public Trust

[2015] NZHC 3036; both cited in Public Trust v Public Trust [2020] NZHC 1294 at [4].

Orders

[8]        I make an order granting leave for Mr Day to bring the Return Application under Part 19 of the Rules.

[9]        I make an order directing the Public Trust to return the Residue (and interest accrued thereon) to Mr Day, pursuant to s 76(2) of the Act.

Gwyn J