Ormsby v Rameka - [2023] NZHC 2150

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-422

[2023] NZHC 2150

UNDER the Land Transfer Act 2017, ss 16, 54 and 55 and r 7.23 of the High Court Rules 2016

BETWEEN

JAYDEN MOANA TE MUHUNGA PANAPA TE AKO ORMSBY

Applicant

AND

OLGA RAMEKA

Respondent

On the papers:

Counsel:

R Faiga for Applicant

Judgment:

11 August 2023

JUDGMENT OF CHURCHMAN J

[1] The applicant has made a without notice application for orders directing the Registrar-General of Land to alter a record of title.

[2] The application relies on rr 19.5 and 7.23 of the High Court Rules 2016 (HCR) and ss 16, 54 and 55 of the Land Transfer Act 2017.

[3] HCR 19.5 allows the Court, in the interests of justice, to permit any proceeding not mentioned in HCR 19.2 to 19.4 to b commenced by originating application. It provides that the Court’s permission may be sought without notice.

ORMSBY v RAMEKA [2023] NZHC 2150 [11 August 2023]

[4] The test for granting such an application is whether it is in the interests of justice.1 The interests of justice have been interpreted to mean the securing of the just, speedy and inexpensive determination of the proceedings.2

[5] Originating applications are commonly used in cases where there is no opposing party, although it is not limited to these types of cases. The process is limited to cases where it is not necessary, in the interests of justice, for there to be the usual particularised pleadings, or interlocutory steps such as discovery for the proper determination of issues.

[6] The originating application procedure is unlikely to be appropriate in cases where factual issues are wide-ranging and in dispute, or if there are multiple parties and discovery may be required, or where there is a possibility of cross-claims or counterclaims. They are not appropriate in respect of applications for orders under ss 339 and 343 of the Property Law Act 2007.3

[7] They are also not appropriate in contested proceedings. In Lung v Liu, the Court said:4

In these circumstances, where contest on a range of issues appears likely if not inevitable, I do not consider that it is in the interests of justice for the proposed proceeding to commence by way of originating application, or without notice to Mr Liu.

[8] Of the three Land Transfer Act provisions relied on by the applicant, s 16 of that Act permits the Court to make orders directing the Registrar to:

(a)cancel the record of title for any estate or interest in land or cancel any entry on the record of title; or

(b)create a new record of title for the estate or interest; or

1      HCR 19.5(1).
2      Solar Bright Ltd v Martin [2019] NZHC 300 at [18].
3      Lung v Liu [2021] NZHC 1810.
4 At [13].

(c)alter the record of title for the estate or interest in the manner directed by the Court.

[9] Sections 54 and 55…

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 Ormsby v Rameka

Details

AGLC: Ormsby v Rameka [2023] NZHC 2150
Case: [2023] NZHC 2150
Decision Date: 11 August 2023

CaseChat Overview and Summary

Jayden Moana Te Muhunga Panapa Te Ako Ormsby has applied to the High Court of New Zealand for orders to direct the Registrar-General of Land to alter a record of title. The application is brought against Olga Rameka, who is the sole surviving executor of the estate of the applicant's late mother, Vera. The applicant inherited a half interest in two properties, which are currently registered in the names of the applicant, his father, and Olga Rameka as executrix. The applicant seeks to have his half-share in the properties transferred to him from Olga Rameka, who has ignored all correspondence on the matter.

The court was required to determine whether the applicant's application could proceed without notice to the respondent and whether the application was in the interests of justice. The court also needed to decide whether the application could be brought under the relevant provisions of the Land Transfer Act 2017 and the High Court Rules 2016.

The court found that the application could not proceed without notice to the respondent as the provisions of the Land Transfer Act 2017 required service of notice on the respondent. The court also found that the application could proceed by way of an originating application as it was in the interests of justice for a just, speedy, and inexpensive determination of the proceedings to be obtained. However, the court found that the applicant's application could not proceed under sections 54 and 55 of the Land Transfer Act 2017 as there was no void or voidable instrument involved in the transfer of the half-share. The court suggested that the applicant may have a remedy under the Administration Act 1969 to remove Olga Rameka as executrix and appoint a new executrix in her place.

The court declined the applicant's application for orders under sections 54 and 55 of the Land Transfer Act 2017 and rules 19.5 and 7.23 of the High Court Rules 2016. The court suggested that the applicant consider an application under the Administration Act 1969 to remove Olga Rameka as executrix and appoint a new executrix in her place.

Orders