Estate of Parker

[2013] NZHC 3536

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2013-409-1727 [2013] NZHC 3536

UNDER  Part 7 of the Public Trust Act 2001

IN THE MATTER OF       the interest of Orfeur George Parker (deceased) in certificate of title CB22/182 (Canterbury Land Registration District) in respect of land situated at Regent Street, Springfield, Christchurch

AND

IN THE MATTER OF       PUBLIC TRUST Applicant

Hearing:                   20 December 2013 (On the Papers)

Counsel:                  G J Ryan

Judgment:                20 December 2013

JUDGMENT OF MANDER J

[1]      Public Trust seeks an order allowing it to commence this proceeding by way of an originating application.  The proceeding itself seeks an order that Public Trust be appointed as manager of a section of land, currently held in the name of Orfoir George Parker, pursuant to ss 99 and 100 of the Public Trust Act 2001.

[2]      The  section  of  land  comprising  905  m2    is  situated  at  Regent  Street, Springfield, Selwyn District.   Its legal description is Part Rural Section 11129, Deposited Plan 421, and contained in Certificate of Title CB22/182 (Canterbury Land Registration District).   The certificate of title records the property as being registered in the name of Orfoir George Parker.  It is believed Mr Parker’s first name

may be misspelled, and should read “Orfeur”.

Estate of Parker (Public Trust) [2013] NZHC 3536 [20 December 2013]

[3]      The property is currently an empty section and there does not appear to be anyone  in  possession.   A neighbouring  owner  has  for  a  number  of  years  been maintaining it, cutting grass, weeding and maintaining fencing.

[4]      Documents held by Public Trust disclose that Mr Parker died on or about 31

October 1922.   Pursuant to his will, Mr Parker granted probate to Blanche Annie Parker, William Henry Phillips and Herbert Alexander Mayo as executors.   The executors were located in the United Kingdom.

[5]      These executors subsequently requested Public Trust to act on their behalf in respect of Mr Parker’s New Zealand property, and this authority was granted by the Supreme Court of New Zealand at Wellington on 26 January 1923.   For reasons, however, which are unknown, Public Trust was not subsequently requested by the executors to act on their behalf in selling the property.  The property remains in the name of Mr Parker.

[6]     In 2010, Public Trust became aware that the registered proprietor of a neighbouring  property,  Rebecca  Henderson,  was  interested  in  purchasing  the property.   It was this neighbour who has cared for the land for some years.   This enquiry prompted Public Trust to make enquiries in respect of the property, and in particular to seek to trace persons who may have an interest in it.

[7]      The beneficiaries of Mr Parker’s will were his wife, Blanche Annie, and his three children, Arthur Orfeur, May Christine, and George Alfred Yarborough.  In an attempt to locate those who may have an interest in the property (likely by way of interest bequeathed by the above beneficiaries), Public Trust engaged a genealogist, Jan Bonnett, to undertake searches to seek to ascertain the executors of the estates of the beneficiaries.  Ms Bonnett has reported that the beneficiaries are all deceased.

[8]     Richard Calvert, the managing solicitor employed by Public Trust at Christchurch, has sworn an affidavit in support of the applications. He states that enquiries to trace those who may have succeeded to the interest of the beneficiaries in the property are ongoing but are likely to take some time.

[9]      Public Trust also arranged for enquiries to be undertaken of the relevant local authority, the Selwyn District Council.  The Council has advised Public Trust that it regards the property as being abandoned.  Mr Calvert deposes that he is not aware of any other information which would suggest that Mr Parker or those who may now have an interest in the property have an agent or administrator in New Zealand with authority to take possession of or administer the property.

Leave to proceed under Part 19

[10]     Rules 19.2-19.4 of the High Court Rules provide for proceedings that may be commenced by originating application.   The current application pursuant to ss 99 and 100 of the Public Trust Act 2001 is not so included.   Rule 19.5, however, provides:

19.5Court may permit proceeding to be commenced by originating application

(1)       The court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application.

...

[11]     Having  regard  to  the  nature  of  the  application,  its  objective,  and  the background which gives rise to it being made, it is in the interests of justice that leave be granted to commence this proceeding under Part 19. Leave is accordingly granted.

The application – ss 99 and 100 of the Public Trust Act 2001

[12]     Sections 99 and 100 of the Public Trust Act 2001 relevantly provides as follows:

99       Appointment of Public Trust as manager of unclaimed property

(1)       Public Trust may be appointed or become manager in accordance with this Part of any real or personal property in New Zealand in the following cases:

...

(b)      when the owner of the property is absent from New Zealand or dead and, after due inquiry, it is not known—

(i)        whether the owner has any agent or administrator in New Zealand with authority to take possession of and administer the property; or

(ii)      where the agent or administrator is; or

(iii)     whether the agent or administrator is alive or dead:

100 Mode of appointment

(1)       The court may appoint Public Trust as manager of any property under this Part, on application made ex parte by Public Trust, if satisfied that the appointment is advisable—

(a)      in the interests of the owner of the property; or

(b)      in the interests of any other person; or

(c)      to secure the development or better utilisation of land.

...

[13]     It  is  submitted  on  behalf  of  Public  Trust  that  due  enquiries  have  been undertaken  to  determine  whether  the  owner  has  any  agent  or  administrator  in New Zealand with the proper authority to take possession of and administer the property.  Further, that enquiries have been made to try to locate those who may have succeeded the beneficiaries in obtaining an interest in the property.  They have not as yet been able to be located.

[14]   Public Trust submits that sufficient enquiries have been made, and no information has been found to suggest there are representatives of the beneficiaries in New Zealand.  It is noted that it appears that Mr Parker and the beneficiaries all resided out of New Zealand at the time of their deaths.

[15]     The prerequisites to the appointment of Public Trust as manager of the land in question are satisfied.   The owner of the property is absent from New Zealand or dead, and after due enquiry it is not known whether the owner has any agent or administrator in New Zealand with authority to take possession of and administer the property; nor is it known where the agent or administrator is; nor whether the agent or administrator is alive or dead.

[16]     The Court may appoint Public Trust as manager of the property if satisfied that the appointment is advisable in the interests of “any other person”; or to secure the development or better utilisation of land.

[17]     Mr Calvert deposes that he is concerned that if the current situation remains there  may  in  the  future  arise  the  potential  for  conflict  between  owners  of neighbouring properties, who may seek to claim an interest in the property and those who may claim a beneficial interest in it as a result of Mr Parker’s will.  He is also concerned that the property will remain not properly developed and utilised.

[18]     Mr Calvert believes it is appropriate that Public Trust be appointed manager of the property in order to secure its development or better utilisation.   If Public Trust is so appointed, he advised that it is likely that Public Trust will arrange to advertise the property for sale.   If it is sold, the sale proceeds, less Public Trust’s costs, will be held by Public Trust for distribution to those entitled to the property, once enquiries in relation to the identity of such persons have been concluded, and assuming such persons can be found.

[19]     I am satisfied that it is in the interests of any persons who may claim an interest in the property that Public Trust be appointed manager of  the property, pending the completion of enquiries by Public Trust.  This will allow Public Trust to take control of the property and test the market as to its saleability.

[20]     If the property can be sold for a reasonable price, it would be prudent to secure such sale.   This is particularly so having regard to the likelihood that the descendants entitled to succeed to the property are most likely to reside out of New Zealand and will have no personal connection with the property.   The sale of the property will result in the assets being converted to cash and be more easily dealt with once the beneficiaries are so identified.

[21]     I am therefore satisfied that the appointment of Public Trust as manager of the property is in the interests of anyone who could claim an interest in the property. Appointing Public Trust as manager will eventually allow for the property, or the net proceeds of sale of the property, to be transferred to those entitled to claim an interest

in it.  It should also secure the future development, sale or better utilisation of the property.

[22]     The following orders are therefore made:

(a)      This  proceeding  is  permitted  to  be  commenced  by  way  of  an originating application.

(b)Public Trust is appointed as manager of that section of land currently held in the name Orfoir George Parker, being 905 m2  more or less, situated at Regent Street, Springfield, Canterbury, and contained in Certificate of Title CB22/182 (Canterbury).

Solicitors:

White Fox & Jones, Christchurch