Kerr, re HC Christchurch CIV 2010-409-1685

[2010] NZHC 1372

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-001685

UNDER  Part 7 of the Public Trust Act 2001

IN THE MATTER OF     the interest of JOHN BLACK KERR AND

IN THE MATTER OF     PUBLIC TRUST

Hearing:         On the papers Appearances: R S Cunliffe for Applicant Judgment:          6 August 2010

JUDGMENT OF HON. JUSTICE FRENCH

[1]      The Public Trust has applied for an order under s 100 of the Public Trust Act

2001 appointing it the manager of an unclaimed property situated in Kingston.

[2]      The High Court Rules do not specifically provide for applications under s

100 of the Public Trust Act, and accordingly leave is sought to commence the proceeding under Part 19, by way of originating application.

[3]      The  affidavit  evidence  that  has  been  filed  in  support  of  the  application establishes the following.

[4]      The property in question is situated at 33 Somerset Street, Kingston, within the Queenstown Lakes district.

[5]      The registered proprietor on the title is recorded as John Black Kerr.  He was the original registered proprietor, the title being issued to him in 1876.

RE KERR HC CHCH CIV-2010-409-001685  6 August 2010

[6]       Enquiries have been made to try and establish the status of Mr Kerr’s estate and in particular whether there was any living administrator entitled to take a transmission of the property in order to complete the administration of the estate.  A number of living descendants have been identified and located.

[7]      The inquiries have established that Mr Kerr died without a will in 1887. His widow  later  remarried.  It  is  not  readily  apparent  who  amongst  the  various descendants is entitled to the land or whether there may be others who have an entitlement given the widow’s remarriage.

[8]      In the meantime, the property (which is an empty section) is vacant, without anyone managing it or having possession of it.  The land is not being utilised for any purpose, and there are arrears of rates owing.  If action is not taken, then there is also a risk the property could become subject to a claim for adverse possession by a third party to the detriment of the descendants.  It is clearly in the interests of those who have an entitlement to the land for the Public Trust to take control of the property pending completion of their inquiries.

[9]      The value of the property as at March 2010 is estimated to be over $50,000 which means that a Court order is required before the Public Trust can be appointed manager: see s 101 for an alternative process in respect of unclaimed property with a gross value that does not exceed $40,000.

[10]     The relevant parts of ss 99 and 100 of the Public Trust Act state:

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:

(a)      when, after due inquiry, it is not known—

(i)       who the owner of the property is; or

(ii)      where the owner of the property is; or

(iii)     whether the owner of the property is alive or dead:

(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: (c)      when the property would vest in the Crown if it were not

subject to a trust for another person, whether under section

324 of the Companies Act 1993 or otherwise, and after due inquiry it is not known whether it is subject to such a trust.

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.

(2)If the Court considers that due inquiry has not been made for the owner of the property or the owner's agent or administrator, or as to whether the property is subject to any trust, it may, before making an order,—

(a)require   further   inquiry   to   be   made   or   advertisements published or notice given; and

(b)      adjourn the application to enable this to be done.

(3)      Notice of an appointment under this section must be published in the

Gazette.

(4)       No property vests in Public Trust by reason only of the fact that it is appointed manager of the property under this section.

[11]     I am satisfied that the statutory pre-requisites for the making of an order are satisfied, and that the orders sought should be granted.

[12]     There will accordingly be orders:

i)Permitting  the  proceeding  to  be  commenced  by  way  of originating application.

ii)Appointing the Public Trust as manager of the property, being a   section   of   land   on   33   Somerset   Street,   Kingston, Queenstown  Lakes  District,  and  described  in  Certificate  of Title SL11/108 as Section 6, Block II Town of Kingston (Southland Land Registration District).

Solicitors:

Macalister Todd Phillips, Queenstown