Orion New Zealand Limited v The Queen

[2018] NZHC 1750

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000388

[2018] NZHC 1750

BETWEEN

ORION NEW ZEALAND LIMITED

Applicant

AND

THE CROWN

Respondent

Hearing:

16 July 2018

Appearances:

S Steven for Applicant

No appearance for Respondent

Judgment:

16 July 2018

ORAL JUDGMENT OF VENNING J

Solicitors:           Chapman Tripp, Christchurch

The Treasury, Wellington

ORION NEW ZEALAND LIMITED v THE CROWN [2018] NZHC 1750 [16 July 2018]

[1]                 Orion New Zealand Ltd (Orion) applies for an order under s 52(1)(b)(iv) of the Trustee Act 1956, namely that land Lot 37 Deposited Plan 407190 held in computer freehold register 425256 be vested in it.

[2]                 The background to the application is set out in the affidavits of Wendy Hughes, a legal administrator, and is supported by an affidavit of Mark Towler. Ms Hughes confirms that in October 2007 Orion offered to purchase a small parcel of land from Jalto Holdings Ltd. However despite the fact that Jalto Holdings Ltd and Orion entered an agreement for sale and purchase in relation to the property, the property was at all material times held by Jalto Holdings No 3 Ltd, a related company. The matter was not picked up by the advisers at the time.

[3]                 Subsequently Jalto Holdings No 3 Ltd issued an invoice for the agreed purchase price which was paid by Orion to Jalto Holdings No 3 Ltd. The property was not transferred to Orion and on 6 May 2013 Jalto Holdings No 3 Ltd was struck off. Orion therefore brings this application seeking to have the property vested in its name.

[4]                 Mr Towler, who is a former director of both of the Jalto Holdings companies confirms that the reference to Jalto Holdings Ltd in the offer and agreement for sale and purchase was a mistake and that the intent of both companies at that time, Jalto Holdings No 3 Ltd and Jalto Holdings Ltd, was to bind Jalto Holdings No 3 as registered proprietor of the land to the sale of the land on the terms of the offer. As a result Jalto Holdings No 3 Ltd effectively held the land in trust for Orion on a resulting or constructive trust until it was struck off the register. All relevant parties have been served with a copy of the application. The Solicitor-General and Treasury have been served. The Treasury has confirmed it has no opposition or objection to the orders sought.

[5]                 Given the evidence in Ms Hughes’ affidavit, confirmed by Mr Towler, I am satisfied that Jalto Holdings No 3 Ltd held the land on trust for Orion and it is appropriate to make the order sought.

[6]                 I make an order in terms of s 52(1)(b)(iv) of the Trustee Act 1956 vesting the land described in the application in Orion New Zealand Ltd.

Venning J