Osborne Family Trust
[2021] NZHC 391
•5 March 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2021-488-23
[2021] NZHC 391
UNDER the Land Transfer Act 1952 IN THE MATTER
of removing “no survivorship” from Record of Title with the Land Transfer Act 1952
BETWEEN
MARGARET FAY OSBORNE, ANDREW JOHN OSBORNE and ALEX HAYDEN
OSBORNE as trustees of the Osborne Family Trust
Applicants
Judgment: 5 March 2021
JUDGMENT OF BREWER J
Solicitors:
Palmer Macauley Lawyers (Kaikohe) for Applicants
OSBORNE FAMILY TRUST (EX PARTE APPLICATION) [2021] NZHC 391 [5 March 2021]
[1] The applicants apply without notice to remove the notation “no survivorship” from a Record of Title constituted under the Land Transfer Act 1952.
[2] The applicants are trustees of the Osborne Family Trust. They are not, however, the registered proprietors entered on the relevant Record of Title.1 The reason is that one of the trustees has died and another has resigned as trustee. The applicants consist of the trustee who remains registered as a proprietor plus two replacement trustees.
[3] The purpose and function of a notation of “no survivorship” on the register was comprehensively discussed by Fogarty J in Sell v Registrar-General of Land.2 Justice Fogarty summed up his views:
[37] The function of the “no survivorship” notation is to alert persons dealing with the Land Registry to the fact that the registered proprietors are trustees.
[4] The Land Transfer Act 2017 has not continued the ability of transferors or persons registered as joint proprietors of any land, estate or interest to enter the words “no survivorship” upon the instrument evidencing their title. However, it has preserved the effect of the words “no survivorship” if they were entered by operation of s 130 or s 131 of the Land Transfer Act 1952.3
[5]I am satisfied that the application should be granted:
(a)Parliament has decided there is no further need for the notation.
(b)There is no useful purpose to be served in continuing this particular notation. The trustees wish it to be removed.
(c)The effect of the entry remaining may be stifling. Section 132 can require the sanction of this court for the transfer or other dealing with the land, estate or interest in question.4
1 NA340/240, North Auckland.
2 Sell v Registrar-General of Land [2013] NZHC 1219, [2013] 3 NZLR 431.
3 Land Transfer Act 2017, Schedule 1, Clause 8.
4 Land Transfer Act 1952, s 132.
(d)The Deed of Trust establishing the Osborne Family Trust gives the trustees the full discretionary power to transfer or otherwise deal with any real property owned pursuant to the Trust.
(e)The final beneficiaries of the Osborne Family Trust have filed an affidavit supporting the removal of the notation.
(f)There is no prejudice to any beneficiary.
[6]I make the following orders:
(a)Sanctioning the removal of the endorsement “no survivorship” from Computer Freehold Register Identifier NA340/240 in the North Auckland Land Registration District.
(b)Advertising is dispensed with.
(c)Service is dispensed with.
(d)No costs will be awarded.
Brewer J