Mason v Triezenberg

[2025] NZHC 28

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-22 [2025] NZHC 28

IN THE MATTER OF

Section 143, Land Transfer Act 2017

IN THE MATTER OF

Caveat No. 13168675.1 (North Auckland Registry), on Certificates of Title NA57D/654 and NA489/273

IN THE MATTER OF

a Deed of Trust dated 26 April 1994 (“Mamari Trust”)

IN THE MATTER OF

a Deed of Trust dated 30 May 2013 (“Mamari (No 2) Trust”)

BETWEEN

ALEXANDER CHARLES MASON

Plaintiff

AND

VICKI ANN TRIEZENBERG and PAUL MORLEY DODD

Defendants

Hearing:

23 January 2025

Appearances:

G J Thwaite for the Plaintiff

No appearrance for the Defendants

Judgment:

23 January 2025

JUDGMENT OF HARVEY J

This judgment is delivered by me on 23 January 2025 at 4.30 pm pursuant to r 11.5 of the High Court Rules

………………………………

Deputy Registrar

Solicitors:
Gregory J Thwaite, Forrest Hill, Auckland

MASON v TRIEZENBERG [2025] NZHC 28 [23 January 2025]

Introduction

[1]    Alexander Mason is an 88-year-old retired builder who lives in Bucklands Beach. He married Wendy Cambie in 1956 and they had three children, Michelle Richardson, Victoria Triezenberg and Mark Mason. Mr Mason’s evidence is that after completing an apprenticeship as a carpenter and joiner, he eventually established his own building company, AC Mason Ltd. His role was to obtain contracts, supervise the completion of the work by tradespersons and be responsible for client management. Mrs Mason acted as administrator with responsibility for invoicing and related financial management. Under their control the business flourished.

[2]    On 26 April 1994, after conversations with friends, Mr and Mrs Mason established the Mamari Trust. Today, Ms Triezenberg and Paul Dodd, an accountant, are trustees and Mr Mason is a beneficiary. The Mamari (No.2) Trust was created almost 20 years later on 20 May 2013. Over time, Mr Mason and Mrs Mason transferred significant assets to and between the trusts, including $3.4 million in cash. From Mr Mason’s evidence it can be inferred that the bulk of these assets were accumulated by the Masons as a result of their successful building company as well as from an inheritance he received from his mother. Mrs Mason died on 26 January 2024, having suffered from dementia prior to her passing.

[3]    Unfortunately, according to Mr Mason, his relationships with his two daughters, along with Mr Dodd, deteriorated significantly following the creation of the Mamari (No.2) Trust and during the period of his late wife’s increasing illness. This then culminated in what might be described as ultimately corrosive litigation before the Family Court, High Court and Court of Appeal over several years involving at least two silks, another barrister and several firms of solicitors, costing hundreds of thousands of dollars. The disputes also included mediation and arbitration. In short, the familial relationships have effectively disintegrated. Mr Mason is now involved in further litigation CIV 2024-404-2788, Mason v Triezenberg & Dodd.1

1      In which Mr Mason seeks the removal of the respondents as trustees of both the Mamari Trust (which owns both properties covered by the relevant caveat) and the Mamari (No.2) Trust.

[4]    Against this background, on 14 November 2024 Mr Mason lodged a caveat against titles to properties owned by the Mamari Trust. Land Information New Zealand (LINZ) sent a Notice  of Lapse  of Caveat  on 10 December 2024, which  Mr Mason received on 11 December 2024. On 23 December 2024, he then filed his originating application for an order that his caveat not lapse, and gave LINZ notice of having done so. A hearing was scheduled for 11 February 2025. Mr Mason intends  to submit that he has a reasonably arguable claim to a caveatable interest in the properties as a beneficiary of the Mamari Trust.

[5]    Mr Mason has sought this earlier mention because the current hearing date of 11 February 2025 falls outside the relevant period set out in s 143 of the Land Transfer Act 2017 (LTA).2 This fixture allocation oversight may have been because the first working day of 2025, as defined in the High Court Rules 2016 (HCR), is 16 January 2025 — which would result in the relevant period expiring on 13 February 2025. However, as defined in the LTA, the first working day of 2025 is 3 January 2025 — which results in the  relevant  period expiring on 30 January 2025.3  Accordingly,  Mr Mason seeks to adjourn the  substantive  application until  the  full  hearing  on  11 February 2025. This will enable him to give notice under s 143(4)(c) of the LTA and prevent his caveat from automatically lapsing on 30 January 2025.

[6]    The respondents have not replied to this proposal. Counsel for Mr  Mason, Mr Thwaite, confirmed that he had given notice to Mr Dodd.

Discussion

[7]    Rule 7.42 of the HCR states that the “hearing of an application may, from time to time, be adjourned on any terms that the Judge thinks just.” When the Court considers whether it is in the interests of justice to postpone a hearing, it must consider justice both between the parties and the interests of other litigants in achieving what is the most efficient use of court resources.4 Here, Mr Mason is seemingly not seeking that the hearing scheduled for 11 February 2025 be adjourned. Rather, he simply seeks

2      The “relevant period” is defined as 20 working days after the date on which the caveator gives notice to the Registrar — which, in this case, was 23 December 2024 (see above at [4]).

3      As confirmed by emails from LINZ to Mr Mason.

4      Jason Bull McGechan on Procedure (online ed, Thomson Reuters) at [HR7.42.01].

an “order adjourning the application” for the purposes of preventing the caveat lapsing under s 143(4)(c) of the LTA. Arguably, this may be viewed as an artificial application of s 143(4)(c).

[8]    Alternatively, Mr Mason submitted that he should be permitted to amend his application to allow the lodging of a second caveat, while acknowledging the shortcomings of this approach. These shortcomings include that the respondents may be able to dispose of the properties during the period after the first caveat has lapsed but before permission is given for the second. In any case, such permission is generally reserved for exceptional circumstances.

[9]    A pragmatic  temporary  solution  to  Mr  Mason’s  predicament  may  lie  in  s 143(4)(b) of the LTA — an interim order that the caveat not lapse, pending further order of the Court. This approach has been adopted in previous cases where allocated hearing dates fall outside the relevant period.5 One potential issue with this approach is that it was not raised by Mr Mason. On the other hand, it does appear to be the appropriate remedy, the Court is able to hear oral applications pursuant to r 1.7, and any natural justice issues over notice to the respondents could be resolved by reserving leave for them to apply to amend or extinguish the interim order.

Decision

[10]   I am satisfied that Mr Mason’s affidavit provides prima facie support for the continuation of the caveat until the scheduled hearing. I therefore make an interim order pursuant to s 143(4)(b) of the LTA that caveat 13168675.1 not lapse, pending further order of the Court. Leave is reserved to the respondents to apply to amend or extinguish the interim order. Counsel is directed to serve this minute and the resulting order on the defendants.

Costs are reserved.

Harvey J

5      See, for example, Guppy v Wohler [2023] NZHC 1799.