Nicholas v Registrar-General of Land

[2020] NZHC 645

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-479

[2020] NZHC 645

BETWEEN

KAREN MARIE NICHOLAS, BRYANT CHASE AND GEORGE ROYAL AS
RESPONSIBLE TRUSTEES OF THE MAHIMAHI E5 AHU WHENUA TRUST
Applicants

AND

REGISTRAR-GENERAL OF LAND

Respondent

Hearing:	25 March 2020 (Via telephone)
Counsel:	D A Cowan
Judgment:	25 March 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 25 March 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Doug Cowan, Auckland

NICHOLAS v REGISTRAR-GENERAL OF LAND [2020] NZHC 645 [25 March 2020]

[1]    The Mahimahi E5 Ahu Whenua Trust (Trust) and the named trustees are applying for an order to remove a “no survivorship” notation on the title of land located at 6 Mepal Place, Manukau Central, Auckland 1010 (the Mepal property). An affidavit by George Craig Royal, one of the named trustees, is submitted in support of the application.

[2]    As we are currently in Covid-19 alert level 3, I convened a conference for the purpose of hearing this matter. The respondent has also indicated that, subject to certain assumptions (mentioned within this judgment), it does not oppose the application. Attendance of counsel for the respondent was therefore excused.

[3]I make the order sought. My reasons follow.

Background

[4]    The background to this application is brief. The applicants are trustees of the Trust. On or about 19 November 2009, the Trust bought the Mepal property. The notation of “no survivorship” was entered on or about 2 November 2012 to show that the Mepal property was held by the registered owners, namely, Grant Nicholas, Bryant Chase and Anahera Pomare (as trustees of the Trust). This was because the Trust could not be noted on the register. Then, on 3 September 2013, Karen Marie Nicholas was also registered, as she was appointed an additional trustee.

[5]    The Mepal property has been used as a commercial lease property, earning the Trust regular income through its multiple tenants. On or about 17 February 2019, the trustees met at their quarterly trustee hui in Auckland where the ongoing retention of that property was discussed. Overall, the trustees expressed a desire to sell the property because it increasingly required more active management, which did not suit the Trust’s operation. Then, on or about 18 October 2019, the Trust engaged Colliers International to market and sell the Mepal property. On 14 December 2019, the Trust entered into a sale and purchase agreement with the trustees of the Araquay Trust to sell the property for $2.408M. That agreement went unconditional on 26 December 2019 and was to settle on 20 February 2020. On 15 January 2020 the trustees then formally resolved to sell the Mepal property.

[6]    On 4 February 2020, the purchasers’ solicitor applied for orders that the “no survivorship” notation be removed from the relevant record of title upon the registration of the transfer. Settlement, however, had been postponed to 20 March 2020 because of that application and the need to remove the “no survivorship” notation.

General Registrar of Lands

[7]    The General Registrar of Lands has indicated that it does not oppose the application on the basis that it understands:

(a)The relevant land is classified as general land for the purposes of Te Ture Whenua Māori Act 1993;

(b)the applicants have complied with the requirements of the relevant trust deed; and

(c)the applicants have obtained all necessary approvals to sell and transfer the relevant land.

Issues and assessment

[8]In reviewing this matter, I identified the following issues:

(a)the powers of the Trustees to dispose of the Mepal property;

(b)the processes the Trustees must follow in deciding to sell its properties;

(c)whether the trustees actually followed those processes; and

(d)whether the sale requires oversight by the Māori Land Court.

Power to sell

[9]    Turning then to these issues. Clause 5 of the Ahuwhenua Trust Deed (Deed) confers a general power to sell trust property as follows:

5.General: In furtherance of the objects of the Trust, the Trustees are empowered to do all or any of the things which they would be entitled to do if they were the absolute owners of the Trust assets provided however that:

5.1The Trustees shall not alienate the whole or any part of the fee simply of the Trust corpus by gift, sale, mortgage or charge other than by way of:

5.1.1Exchange on the basis of land for land value and then effected by Court order; or

5.1.2In settlement of a proposed acquisition pursuant to the Public Works Act or similar statutory authority.

[10]   As Mr Cowan submits, while not a specific power to sell, this general power is sufficient to enable the Trust to sell any property other than Trust corpus. The Trust corpus is defined as follows:

TRUST CORPUS

“All that parcel of land situated in Block IV Survey District containing 62.5988 hectares more or less being the pieces of land called Mahimahi E5 and being all the land described in Partition Order of the Māori Land Court dated the 5th day of August 1947.”

[11]   The Mepal property is not Trust corpus. Accordingly, the Trust may sell the Mepal property.

Process

[12]   Clause 7 of the Deed provides for trust meetings, while cl 8 provides for trust decisions. Relevantly, cl 7 provides for meetings by telephone conference and states that quorum is a simple majority. Clause 8 also states:

8.1 Any of the powers and authorities hereby given to or vested in the Trustees may at any time be exercised by a majority of the Trustees and all acts and proceedings of such majority of the Trustees shall, in such case, be as valid and effectual as if they had all concurred therein.

[13]   Ms Claudia Louise Harnett (a solicitor for the Trust) filed a supplementary affidavit setting out the circumstances of the Trust’s decision to sell the land. The decision was made unanimously by all the trustees via telephone conference, in accordance with both cls 7 and 8 of the Deed.

Is Māori Land Court oversight needed?

[14]Mr Cowan submits for the applicants:

(a)No orders are required from the Māori Land Court, the land being general land for the purposes of Part 6 of Te Ture Whenua Māori Act 1993.

(b)Having discussed the matter with the LINZ solicitor, they would not require the oversight of the Māori Land Court as it is general land but the applicants may need to notify the Māori Land Court of its intention to remove the “no survivorship” notation.

(c)On 24 February 2020, the applicants notified the Māori Land Court of its intention to remove the “no survivorship” notation, without a response.

[15]   I agree that Māori Land Court oversight is not required in this case. The Deed permits the sale of the land without recourse to beneficiaries, the land is general land, and the land is not part of the Trust corpus land. The protective provisions of Te Ture Whenua Māori Act 1993 are not engaged.

[16]   I am therefore satisfied that the “no survivorship” notation should be removed from the relevant record so as to enable conclusion of the property sale.

[17]   No application was made for costs. To the extent necessary, however, the reasonable costs of making this application may be paid by the Trust.