Murphy v Treasury

[2023] NZHC 3752

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1067

[2023] NZHC 3752

UNDER

Land Transfer Act ss 89 and 105

AND

IN THE MATTER OF

the vesting of land

BETWEEN

SEAN CRAIG MURPHY and JENNY MARIE MURPHY

Applicants

AND

TREASURY

THE COMMISSIONER OF CROWN LANDS

LAND INFORMATION NEW ZEALAND

Respondents

Hearing:

18 December 2023

Appearances:

A Sirimanne for Applicants

No appearance for Respondents (abiding the decision of the Court)

Judgment:

18 December 2023

JUDGMENT OF LANG J

This judgment was delivered by Justice Lang On 18 December 2023 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Reuben & McGeachie Law Ltd, Auckland

MURPHY v TREASURY [2023] NZHC 3752 [18 December 2023]

[1]    The applicants in this proceeding, Mr and Mrs Murphy, are the owners of a residential property situated on the corner of Golf Road and Havelle Avenue in Titirangi. The certificate of title to their property shows that it is 1,012 square metres in size. Mr and Mrs Murphy have always assumed this to be the case and they have paid rates on that basis.

[2]    Mr and Mrs Murphy decided to subdivide their land. They engaged a surveyor for this purpose. The surveyor discovered that a strip of land approximately 20 square metres in size at the rear of the section fell outside the boundary of Mr and Mrs Murphy’s property. Their property is therefore only 992 square metres in size rather than 1012 square metres as shown on the certificate of title.

[3]    Originally there was no certificate of title for the 20 square metre strip of land. Once the error was discovered a new certificate of title was created for that parcel of land. This shows two companies as being the registered proprietors of the land. Those companies presumably owned a larger parcel of land from which both the strip of land and the land now owned by Mr and Mrs Murphy were subdivided many years ago. The land shown in the new certificate of title is subject to a mortgage registered on 14 December 1966.

[4]    Mr and Mrs Murphy have made extensive efforts to locate the two companies who are shown as the registered proprietors of the land that they always believed formed part of their section. These show that one of the companies has never existed and there is now no trace of the other. They have not been able to locate the directors of the second company. Similarly, their efforts to locate the mortgagee have been fruitless.

[5]    Mr and Mrs Murphy now seek an order that the strip of land be vested in them under s 89 of the Land Transfer Act 2007 (the Act). They also seek an order under s105 of the Act discharging the mortgage that is currently registered against the certificate of title for that land.

[6]    At the Court’s direction the proceeding has been served on the owners of the adjoining property and they have taken no steps to oppose the application. The

proceeding has also been served on the Treasury and the Commissioner of Crown Lands. They do not oppose the application and abide the Court’s decision. They consider there is considerable doubt as to whether the strip of land has ever vested in the Crown.

[7]    It seems to me that all parties to the original subdivision of the land anticipated that the strip of land would become part of the land now owned by Mr and Mrs Murphy. The boundary fence has been erected on that understanding and the strip of land has always been treated by both the rating authorities and successive owners of the Murphys’ land as forming part of their land. The situation that has arisen was caused by inadvertence on the part of those who carried out the original subdivision. It is therefore appropriate to make orders that give effect to the intentions of those who originally subdivided the land.

[8]    The Court may make an order under s 105 discharging a mortgage where it is satisfied the mortgagee would be barred by the Limitation Act 2010 from enforcing payment of the money secured by the mortgage. The mortgage in the present case was registered more than 67 years ago. I have no doubt that the debt secured by the mortgage has now been repaid, probably many years ago. Alternatively, any action by the mortgagee to recover monies secured by the mortgage would now be statute-barred by virtue of the provisions of the Limitation Act 2010.

[9]    I am therefore satisfied it is appropriate to make an order under s 89 of the Act vesting the land in Mr and Mrs Murphy and an order under s 105 of the Act discharging the mortgage currently registered against the title to that land.

[10]I make orders accordingly.

Lang J