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 set out the circumstances in which the power contained in s 16 can be exercised.

[10]      Section 54 of the Act authorises the Court to order an alteration in the register in limited circumstances. It can only be done where a person:5

(a)has been deprived of an estate or interest in land by the registration under a void or voidable instrument of another person (person B) as the owner of the estate or interest in the land; or

(b)being the owner of an estate or interest in the land, suffers loss or damage by the registration under a void or voidable instrument of another person (person B) as the owner of an estate or interest in the land.

[11]Section 54(3) provides that an application for an order under s 54:

… must be made not later than six months after [the applicant] becomes aware, or ought reasonably to have become aware, of the acquisition of the estate or interest by person B.

[12]      Section 54(4) provides that the applicant must serve notice of the application on both the Registrar and the registered owner of every estate or interest in the land and every person noted on the register as entitled to an interest in the land.

[13]      Section 55 says the Court may make an order in circumstances of manifest injustice.

The facts

[14]      The applicant inherited a half interest in two Properties (7B Sunflower Way, Johnsonville WN39A/791 and 10 Jamaica Drive, Grenada North WN24A/711 (together “the Properties”)) from his late mother (Vera). The other half interest in the Properties is owned by his father (Clinton).

5      Land Transfer Act 2017, s 54(1)(a) and (b).

[15]      Under Vera’s Will, the applicant’s interest in the Properties vested when he attained the age of 25 years. That occurred more than two years ago.

[16]      The sole surviving executor of Vera’s estate is his late mother’s sister, Olga Rameka of Taupō. The other executor was the deceased’s mother, Sophie Ropina Keefe, who has since died.

[17]      The certificates of title to both Properties record the registered owners as being “Clinton Ashley Ormsby as to a ½ share and Olga Rameka and Sophie Ropina Keefe as to a ½ share as Executrixs [sic].” The applicant has requested that Olga Rameka, as the only surviving Executrix, transfer his ½ share in the Properties to him. She appears to have ignored all correspondence (including that from the applicant’s solicitor). She does not appear to have taken any steps to administer the estate.

[18]      The lawyer initially administering the estate, Mr Denee, died and the file was taken over by John Langford. Mr Langford has been unsuccessful in obtaining instructions from Olga Rameka.

[19]      The matter has now become urgent. The Properties are both in a state of disrepair and neither the appellant nor Clinton have the funds to effect the repair without obtaining a mortgage. With the register of title showing the Properties being jointly owned by the estate, the banks will not lend. The applicant’s only option is to turn to the Court for assistance.

[20]      On the basis of the information before me, Olga Rameka is arguably in dereliction of her duties as executor. Depending on the course followed from here, she may well end up having a costs award made against her. By far the simplest and cheapest option would be for her to contact John Langford and sign the necessary transfers.

Analysis

[21]      This application is not capable of proceeding on a without notice basis. Section 54(4) of the Land Transfer Act is mandatory. The applicant is therefore

required to serve notice of the application on the Registrar and every registered owner. That would include Olga Rameka.

[22]      The proceedings would seem to be capable of being commenced by way of originating application. On the facts of this case, it is clearly in the interests of justice for a just, speedy and inexpensive determination of these proceedings to be obtained. It does not seem to be a case where discovery would be required, or there is a possibility of cross-claims or counterclaims.

[23] However, there is a real problem with the application of s 54 of the Land Transfer Act. As set out at [10] above, that section is only available where an applicant has been deprived of an estate or interest in land by the registration of a void or voidable instrument by another person. There is no void or voidable instrument involved here. The transfer of the half share was done validly pursuant to Vera’s Will. In the absence of a void or voidable instrument, we do not get to consider the factors relevant under s 55 of the Land Transfer Act.

[24]      However, the applicant is not without potential remedies. The most obvious would seem to be an application under the Administration Act to remove Olga Rameka as Executrix and to appoint a new Executrix in her place.6 That person could then attend to signing the necessary transfers and also undertake the necessary work to complete administration of the balance of the estate.

[25]      If Olga Rameka did not cooperate with such an application, she would potentially render herself liable for an award of costs made against her personally.

6      Section 21 of the Administration Act 1969 gives the Court the power to remove and replace an administrator or executor.

Outcome

[26]      The applications for orders under ss 54 and 55 of the Land Transfer Act 2017 and rr 19.5 and 7.23 HCR are declined.

Churchman J

Solicitors:

The Law Store, Porirua for Applicant