McLellan v Terry HC Greymouth CIV-2010-418-000123 - [2011] NZHC 570

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2010-418-000123

BETWEEN ROSALIND MEGAN MCLELLAN Plaintiff

ANDROBERT TERRY First Defendant

ANDTHE PUBLIC TRUSTEE Second Defendant

Hearing: 19 May 2011

Appearances: G M Brodie for plaintiff
First defendant in person
No appearance by second defendant

Judgment: 15 June 2011

RESERVED JUDGMENT OF CHISHOLM J

[1] This is an application under s 76(2) of the Local Government (Rating) Act

2002 for an order directing the Public Trustee to pay out monies it has held following a rating sale in 1998. The application is opposed by the first defendant whose counsel, Mr Allen, was granted leave to withdraw at the beginning of the hearing. The second defendant abides the decision of the Court.

[2] On 6 May 2011 the first defendant, Robert Terry, sought an adjournment on the basis that his barrister had withdrawn and he was not ready to proceed. His request was opposed by the plaintiff. By minute issued on 11 May 2011 the request for an adjournment was refused on the basis that Mr Terry had had ample opportunity to obtain legal representation since his barrister had indicated he was
withdrawing in December 2010.

MCLELLAN V TERRY HC GRY CIV-2010-418-000123 15 June 2011

[3] At the beginning of this hearing Mr Terry renewed his request for an adjournment. He also asked that I recuse myself because I had made the order bankrupting his brother, Brian Terry, in 1997. Both requests were declined.

Background

[4] The plaintiff in this proceeding is the only child of Brian Terry who died intestate on 1 July 2009. She was granted letters of administration on 15 September
2009 and is entitled to inherit the whole of her father’s estate.

[5] Brian Terry was registered as the proprietor of three parcels of land that had originally formed part of a larger dairy farm:

(a) 28.4392 hectares being all the land in certificate of title 100/102 (Nelson Registry)

(b) 1.1052 hectares being all the land in certificate of title 33/4 (Nelson

Registry)

(c) 32.5443 hectares being all the land in certificate of title 133/77 (Nelson Registry).

In the case of the last piece of land Brian Terry was registered as a tenant in common in equal shares with his brother, Robert Terry.

[6] On 30 January 1998 those properties were sold by the Registrar of the High Court at Greymouth pursuant to the Rating Powers Act 1985 by virtue of unsatisfied judgments for rates. Those judgments, which were originally obtained in the District Court on 12 March 1993 and 24 March 1993, had been registered in the High Court. Even though Robert Terry held a half share in CT 133/77 he does not seem to have been served with the proceedings that led to the judgments and rating sale.

[7] Following the rating sale the sum of $131,656.82 was paid to the Public

Trustee. There was no apportionment between the three parcels of land. On

16 March 1999 the High Court directed the Public Trustee to pay $21,940.31…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McLellan v Terry HC Greymouth CIV-2010-418-000123

Details

AGLC: McLellan v Terry HC Greymouth CIV-2010-418-000123 [2011] NZHC 570
Case: [2011] NZHC 570
Decision Date: 15 June 2011

CaseChat Overview and Summary

The plaintiff, Rosalind Megan McLellan, sought an order directing the Public Trustee to distribute funds held following a rating sale. The plaintiff, as the sole child of Brian Terry who died intestate, was granted letters of administration and sought to inherit her father's estate. The defendant, Robert Terry, opposed the order on the grounds that the rating sale was unlawful and that he should receive a greater share of the proceeds. The plaintiff sought a determination of the shares in which the money held by the Public Trustee should be divided between her and the defendant, and an order directing the Public Trustee to pay the money to them in accordance with such determination.

The court considered whether to go behind the indefeasibility provisions contained in s 62 of the Land Transfer Act and decided that there was no realistic possibility that the legal ownership evidenced by the titles could be defeated at this late stage. The court found that Robert Terry had overstated his position in his affidavit and that the various issues concerning him had been considered by the Family Court. The court concluded that it was time for the funds to be distributed and that an order should be made pursuant to s 76(2) for the funds to be distributed in accordance with the legal ownership reflected by the certificates of title.

The court ordered that the Public Trustee distribute the funds in accordance with the apportionment calculated by the plaintiff's expert. The court also ordered that the defendant pay costs of $3000 and that any surplus and further interest be apportioned and distributed as per the plaintiff's memorandum to the registrar. Leave was reserved for any party to apply further should the need arise.

Orders