Kahu v Westpac New Zealand Limited

[2022] NZHC 1281

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2022-443-5

[2022] NZHC 1281

UNDER

the Land Transfer Act 2017

IN THE MATTER OF

an application transferring the Record of Title for Land to the Plaintiffs

BETWEEN

J R KAHU AND ANOTHER

Plaintiffs

AND

WESTPAC NEW ZEALAND LIMITED

Defendant

Hearing:	31 May 2022
Appearances:	I D Matheson for the Plaintiffs Appearance excused for the Defendant
Judgment:	1 June 2022

JUDGMENT OF PALMER J

Solicitors/Counsel

Connect Legal, New Plymouth

KAHU v WESTPAC NEW ZEALAND LIMITED [2022] NZHC 1281 [1 June 2022]

[1]                  On 31 May 2010, Mr John Kahu and Mrs Suzanne Kahu agreed to “rent to buy” a property in Tauhuri Street, Manaia, Taranaki, from Mr  Philip  Duffy  and Mrs Deborah Duffy. They made a lump sum payment and then weekly payments to meet the purchase price of $86,000. They covered the costs associated with the property, including rates and insurance. Their evidence is that they have accidentally paid $28,000 more than required. They may choose to pursue this, but Mr Matheson, on their behalf, says that it is likely to be difficult to recover.

[2]                  The property was owned by a company, D & P Developments Ltd (D & P).  D & P was removed from the Register of Companies in September 2011, re-registered in April 2012 and removed again in September 2013. It is not currently registered.

[3]                  The Duffys have separated and have health issues. The solicitor acting for  Mr and Mrs Kahu has had correspondence with the Duffys about transferring title to the property to Mr and Mrs Kahu. Mr Matheson says that Mrs Duffy has said on numerous occasions she would do what is necessary to transfer the title. But she has not. He says that Mr Bulfin, the Duffys’ former solicitor, has indicated he has done everything possible to get them to take the necessary steps to complete the transfer. But they have not. Mrs Kahu’s evidence is that this is a stressful situation for them.

[4]                  Mr and Mrs Kahu now apply for orders transferring the title of the property from the Duffys to Mr and Mrs Kahu. In Keeley v R, Gault J held that property held by a company on trust at the time it was removed from the Companies Register did not vest in the Crown.1 Rather, he made an order under s 52(1)(h) of the Trustee Act 1956 vesting the property in the applicants. There is no equivalent provision in the Trusts Act 2019 to s 52(1)(h). But s 8(1) provides that the inherent jurisdiction of the High Court to supervise and intervene in the administration of a trust is not affected by the Act other than as provided. Section 8(2) requires a court to have regard to the purpose and principles of the Act when exercising its inherent jurisdiction. With that condition, I am satisfied that the High Court has an equivalent power to  the former  s 52(1)(h) under its inherent jurisdiction.2

1      Keeley v The Crown [2019] NZHC 2533.

2      Ballantyne v Ballantyne [2021] NZHC 1190 at [17].

[5]                  The Duffys have been served with the proceedings but have taken no steps. Mr Matheson says they do not appear capable of doing so. Westpac New Zealand Ltd, which holds a mortgage over the property of some $60,000, does not object to the transfer of title on the condition that it remains subject to the mortgage. The Kahus agree to that. The Treasury advises that the Crown has no objection to the transfer, does not wish to be heard and abides the decision of the Court. A solicitor advising the Treasury suggested the legal situation might be as Mr Matheson submits it is. I agree.

[6]                  I am satisfied that D & P, when it existed, held the property on trust for Mr and Mrs Kahu and that is just and equitable for the title to be transferred to them. I make the order sought, transferring the title of the property to them, conditional upon the mortgage and existing interests remaining on the title.

Palmer J