Lynch v Public Trust

[2025] NZHC 1263

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000764

[2025] NZHC 1263

UNDER

Secttion 89 of the Land Transfer Act 2017

IN THE MATTER OF

an application for a vesting order

BETWEEN

GRANT ANTHONY LYNCH and WENDY

ANN VANDERMADE as Trustees of the BARBARA ELLEN LYNCH FAMILY

TRUST
Applicants

AND

PUBLIC TRUST

Respondent

Hearing:	On the papers
Appearances:	C Fisher for the Applicants P Vinnell for the Respondent
Judgment:	21 May 2025

JUDGMENT OF WALKER J

This judgment was delivered by me on 21 May 2025 at 2.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

Fortune Manning, Auckland

LYNCH v PUBLIC TRUST [2025] NZHC 1263 [21 May 2025]

[1]                 The applicants are trustees of the Barbara Ellen Lynch Family Trust (the Trust). They have filed an originating application for an order that the property located at 8/9 Evans Road, Glen Eden, with Record of Title Identifier NA46D/882 (the Evans Road property), be vested in them. In short, they want to correct the record of title so that the current trustees are recorded and need such an order to lodge with LINZ to effect the transfer.

[2]The application is supported by:

(a)Affidavits of Wendy Vandermade and of  Grant  Lynch,  both  dated 28 March 2025.

(b)A memorandum of counsel in support of the application and for leave to commence the proceeding by way of originating application and directions as to service, dated 31 March 2025; and

(c)A joint memorandum of counsel for the parties and interested party directed to be served seeking the order on the papers, dated 14 May 2025.

[3]                 An order was made granting leave to the applicants to commence the proceeding by way of originating application under Part 19 of the High Court Rules 2016.1 This judgment sets out the reasons for making the vesting order which is not opposed.

The facts

[4]The applicants are the children of Barbara Lynch. She died on 6 April 2024.

[5]                 When the Trust was settled by Mrs Lynch  in 1998, the two trustees were  Mrs Lynch and the Public Trust. The Trust’s primary asset is the Evans Road property.

1      Lynch v Public Trust HC Auckland CIV-2025-404-764, 8 April 2024 (Minute of Robinson J).

[6]                 Mrs Lynch and the Public Trust are recorded on the title as the registered owners.

[7]The final beneficiaries of the Trust are the applicants.

[8]                 The Public Trust retired as a trustee in 2010 and was replaced by Lovegroves Trustee Company Limited (Lovegroves). For reasons not known to the applicants, the title was not updated.

[9]                 The sole executor of Mrs Lynch’s estate is Grant Lynch. Lovegroves retired as a trustee in February 2024. It was replaced as trustee by the applicants, who are now the only two trustees of the Trust.2

[10]              The applicants wish for the Evans Road property to be transferred into their names but there is no one willing and able to sign the Authority and Instruction (A&I) forms to enable this transfer.

[11]              The Public Trust declined to sign any A&I forms because it was not a trustee when Mrs Lynch died. Lovegroves, who was a trustee when Mrs Lynch died, also cannot sign the necessary A&I forms because it is not Mrs Lynch’s survivor so far as the record of title is concerned.

[12]              There is no dispute that the applicants are the valid trustees of the Trust and that they should be recorded as the registered owners of the property.

The application

[13]              The application is made under s 89 of the Land Transfer Act 2017 for an order vesting the property in the applicants’ names. Counsel inform the Court that the order can then be lodged with LINZ, avoiding the need for any other persons to sign A&I forms.

[14]Section 89 of the Act provides:

2      Deed of Retirement and Appointment of Trustees dated 24 February 2025.

89       Vesting of land by court order

(1)A sealed copy of an order of a court of competent jurisdiction that vests an estate or interest in land in a person may be lodged for registration under this Act.

(2)The Registrar must register the order.

(3)On registration of the order, the estate or interest vests in the person named in the order on the terms and conditions stated in the order.

[15]              I am satisfied that the order is appropriate in this case. Reliance on s 89 of the Act is a method of attending to the change in the registered title. There are no questions of costs. The Public Trust consents as does Lovegroves. No conditions or terms are requested in the application.

[16]              There being no identifiable obstacle to making the order, I make an order that the property located at 8/9 Evans Road, Glen Eden, being the property with record of title identifier NA46D/882, be vested in the applicants.

............................................................

Walker J