De Young v Rewita

[2017] NZHC 2064

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2017-463-34 [2017] NZHC 2064

BETWEEN

LUCKY VICTOR DE YOUNG AND

PETTRINA TE INU DE YOUNG Applicants

AND

MARK PAUL WILLIAM REWITA AND DEBBIE FRANCES GUNDERSON

First Respondents

PUTI PUTI BELI, PETER CLARKE, JOCELYN RAMEKA, HARVEY KARAITIANA, EVA SIMMONDS AND JOHN TAHAU AS TRUSTEES OF THE TAUHARA MIDDLE 14 AHU WHENUA TRUST

Second Respondents

Hearing:	(on the papers)
Counsel:	P Cornegé for Applicants
Judgment:	28 August 2017

JUDGMENT OF HEATH J

This judgment was delivered by me on 28 August 2017 at 3.30pm

Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Woodward Law Offices, Lower Hutt
Counsel:

P Cornegé, Hamilton

DE YOUNG AND DE YOUNG v REWITA AND ORS [2017] NZHC 2064 [28 August 2017]

[1]      During 2005, Mr and Mrs De Young became aware that a leasehold interest in a property located at 5 Paora-Rokino Place, Waitahanui, was to be sold at mortgagee sale.   Mrs De Young undertook negotiations with the solicitors for the mortgagee.  Ultimately, Mr and Mrs De Young purchased the leasehold interest on 1

November 2005 for $30,000, subject to consent of the trustees of Tauhara Middle 14

Trust, as owners of the property.  That consent was given on 15 November 2005, and the amount required to settle was paid to the mortgagee on 22 December 2005.

[2]      Although the solicitors for the mortgagee provided an executed transfer and the lease to Mr and Mrs De Young, their interest in the property has never been registered.   It was not until 2016, when Mr and Mrs De Young wished to sell the lease that they became aware of this problem.

[3]      Mr and Mrs De Young apply for orders under ss 56 and 57 of the Land Transfer Act  1952  (the Act)  for  investigation  of  their  right  to  be  registered  as proprietors of the leasehold estate by virtue of a lost instrument, and declaring that they are entitled to be registered as such.  The trustees of Tauhara Middle 14 Trust consent to an order.  The first respondents, who were the previous leaseholders, have been served but have taken no steps.  Leave to bring the proceeding by originating application was granted on 24 July 2017.

[4]      Sections 56 and 57 of the Act provide:

56       High Court may investigate cases of lost instruments

In  case  of  the  loss  or  destruction  before  registration  thereof  of  any instrument executed by a registered proprietor for the purpose of creating, transferring, or otherwise dealing with any estate or interest in land under this Act, or any mortgage or encumbrance affecting land under this Act, the person claiming to be entitled to be registered as proprietor of any estate or interest by virtue of the lost instrument may make application to the High Court to have his claim investigated and declared.

57       Court may order claimant to be registered as proprietor

(1) Upon proof to the satisfaction of the court of the fact of such loss or destruction as aforesaid, and that such instrument as aforesaid has not been wilfully destroyed by or with the connivance of the applicant, and that the applicant is entitled to be registered as aforesaid, and that due notice of the application has been given to the registered proprietor of the land, estate, or interest intended to be affected, and to all other necessary parties, the court may  make  an  order  defining  and  declaring  the  estate  or  interest  of  the

applicant under the instrument, and requiring the Registrar to register him as proprietor thereof, and the Registrar shall obey the order.

(2)  Every such registration  shall  have  the same  effect as from the  date thereof as if the original instrument had been duly registered; and that instrument shall for the purposes of this Act be deemed and taken to have been in the terms or to the effect set forth in the order.

(3) The court shall, in hearing and deciding upon any case under this section and the last preceding section, be guided by the real justice of the case, and shall direct itself by such evidence as may seem to it most suitable to the circumstances of the case.

[5]      There is little authority on the circumstances in which applications of this type will be granted.   Mr Cornegé, for Mr and Mrs De Young, referred me to a decision of Warwick Gendall J, in Hodge Trustee Services Ltd v Huang,1  in which, after inquiring into the relevant circumstances, the Judge made an order.  The terms on which the order was made are helpful because it dealt specifically with the E- dealing method of registration that was not in place when the Act was passed.

[6]      Having regard to the circumstances described in the affidavit of Mrs De Young, the solicitor who acted on the purchase of the lease, Mr Cargill, and the consent of the registered proprietor of the property to an order, I am satisfied that, for the  purposes  of  s 56,  Mr  and  Mrs  De  Young  are  entitled  to  be  registered  as proprietors of the leasehold estate and that orders should be made under s 57 to give effect to that finding.   The declaration that I propose to make is based on those crafted by Gendall J in Hodge Trustee Services Ltd.

[7]      For those reasons, I order that:

(a)      The loss of the transfer executed by The Home Mortgage Company Limited (as mortgagee under mortgage B566580.4. South Auckland registry, of which the first respondents were mortgagors) be investigated under s 56 of the Land Transfer Act 1952;

(b)      Pursuant to s 57 of the Land Transfer Act 1952, the Court defines and

declares the applicants’ estate or interest in the property located at 5

Paora-Tokino Place, Waitahanui, comprising all that parcel of land

1      Hodge Trustee Services Ltd v Huang HC Wellington CIV-2007-485-2001, 8 July 2008.

containing 970 square metres more or less, being on lot 15 Deposited Plan South Auckland 55375, and more particularly described in Certificate of Title SA44B/356, South Auckland Land Registration District (the property), to be the leaseholder of lease B129233.1 registered in the names of the first respondents (the leasehold);

(c)     Angelo Papageorgiou and the firm Papageorgiou Law Offices, Wellington, are authorised to carry out the registration of this order by E-dealing on behalf of both the applicants and the first respondents, and the Registrar is required to register the applicants as the proprietor of the leasehold so as to comply with s 57(1) of the Land Transfer Act

1952.

[8]      No order as to costs.

P R Heath J

Delivered at 3.30pm on 28 August 2017