Pivac v Hagger

[2018] NZHC 774

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2017-488-000041

[2018] NZHC 774

UNDER

The Trustee Act 1956

IN THE MATTER OF

An application for a vesting order under s 52

BETWEEN

PERA WAYNE PIVAC

Plaintiff

AND

MAUREEN HAGGER

First Respondent

ANTHONY HAGGER by his administratrix TONI MARIA VAZEY
Second Respondent

MOLLY GLORIA BENTLEY
Third Respondent

/cont

Hearing:

23 April 2018

Appearances:

SB Punshon for the Plaintiff

MB Smith on instructions from Crown Law for First and Sixth Defendants

Judgment:

23 April 2018

JUDGMENT OF WOOLFORD J

Solicitors:           Patterson Law (Simon Punshon), Kaitaia

Crown Law (M McKillop), Wellington

Marsden Woods Inskip Smith (M Smith), Whangarei

PIVAC v HAGGER & ORS [2018] NZHC 774 [23 April 2018]

PETER TEMPLE HAGGER

Fourth Respondent

ARAHI HAGGER
Fifth Respondent

MAREMATANGA GEORGE HAGGER
Sixth Respondent

VICTORIA EDWARDS
Seventh Respondent

JOHN WIREMU RIPPINGALE

Eighth Respondent

LENNON ROUNATIA RIPPINGALE
Ninth Respondent

JAMES WALTER RIPPINGALE
Tenth Respondent

[1]    In earlier proceedings, the plaintiff sought specific performance of an agreement for sale and purchase of part only of land situated at Kaimaumau (the property) in the Far North owned by the defendants as tenants in common.

[2]    On 20 August 2008, following a settlement conference, Harrison J made certain orders by consent requiring the plaintiff to apply for resource consent for a scheme plan of subdivision and if consent was granted, to implement the consent as to obtain titles to the subdivided land. Upon titles being issued, Harrison J directed the parties to execute a transfer of the newly created Lot 10 in favour of the plaintiff.

[3]    After some delays, resource consent has been obtained and new titles issued. There is, however, now some difficulty for the defendants to execute a transfer to the plaintiff. Three of the defendants have died, including two who died intestate. A fourth was relocated to Australia by the Police under the witness protection scheme and could not be located, but I am advised this morning by counsel that he believes he has also subsequently died.

[4]    The plaintiff has therefore issued these proceedings and seeks the Court’s assistance to enable the transfer of Lot 10 into his name as directed by Harrison J almost 10 years ago.

Nature of proceedings

[5]    The plaintiff pleads two causes of action. The first alleges that as a consequence of three, and now four, of the original 10 named defendants being deceased, a resulting or constructive trust exists in favour of the plaintiff, whereby the defendants hold the property for the plaintiff. The plaintiff then claims an order vesting the property in the plaintiff under s 52 of the Trustee Act 1956 in the terms set out in Harrison J’s order of 20 August 2008.

[6]    The second alleges that four of the defendants are not able to sign documents to enable the transfer of the property and that it is unnecessarily burdensome to require the remaining six defendants to sign the documents. The plaintiff then claims, in the alternative, an order under s 3 of the Judicature Amendment Act 1910 that the

Registrar sign the necessary conveyancing documents to enable the transfer of the property to the plaintiff.

Defendants’ position

[7]    The plaintiff has complied with this Court’s direction as to service on the surviving defendants with the exception of the fourth defendant, Peter Hagger, who was relocated to Australia and who is now also apparently deceased. In addition, the plaintiff has served the Crown Law Office in respect of the estates of two of the defendants who have died intestate. The Attorney-General abides the Court’s decision in respect of the proceedings against the first and sixth defendants.

[8]    The fifth defendant, Arahi Hagger, has signed a consent dated 9 June 2017 in which he confirmed his consent to a vesting order being made in favour of the plaintiff, conditional upon the sum of $10,000 as legal fees being paid to him in accordance with a further order of Harrison J made on 20 August 2008.

[9]    The seventh defendant, Victoria Edwards, filed a statement of defence, but in a conference minute dated 28 November 2017, Associate Judge Bell recorded that counsel no longer had instructions from her and leave was granted to him and his instructing solicitor to withdraw from the proceedings. Associate Judge Bell noted that it seemed unlikely that Ms Edwards would actively defend the proceeding and, accordingly, he directed that she would have until 9 February 2018 in which to file and serve any evidence by way of affidavit. Ms Edwards has not filed any evidence and the plaintiff’s claim is therefore, in essence, undefended.

[10]   As noted, all remaining defendants have been served with the proceedings, but have taken no steps.

Discussion

[11]   I am of the view that the most expedient remedy available is under s 3 of the Judicature Amendment Act 1910. This would dispense with any need to examine the intention underlying the orders of Harrison J and whether they may have created a resulting or a constructive trust.

[12]Section 3 provides:

3        Execution of instruments by order of the High Court

(1)Where any person neglects or refuses to comply with a judgment or order of the High Court or Court of Appeal directing him to execute any conveyance, contract, or other document, or to endorse any negotiable instrument, the High Court may, on such terms and conditions (if any) as may be just, order that such conveyance, contract, or other document shall be executed or that such negotiable instrument shall be endorsed by such person as the High Court may nominate for that purpose; and in such case the conveyance, contract, document, or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it.

(2)This section shall not affect any action or other proceeding already commenced in any Court, or invalidate anything heretofore lawfully done, or validate anything already declared to be invalid in any proceedings heretofore taken in any Court.

[13]   Counsel has referred me to Bruns v Freeth in which Thorp J authorised the Registrar to sign a transfer of land to give effect to an order for specific performance of the sale of land, where the defendants, whilst aware of the proceedings and the hearing, had taken no part.1 Thorp J accepted that there was no limitation either on the class of document, which the Court could order to be executed, or on the purpose to which the document so executed could be used.

[14]Counsel has also made reference to Barge v Freeport Development Ltd (No 2)2

and Toman v Toman.3

[15]   I am of the view that the words “neglects or refuses” in s 3 are wide enough to cover this situation where four of the defendants are now deceased. Given that there are varying degrees of cooperation from the remaining defendants, I am of the view that it would also be expedient to direct the Registrar to sign the necessary documents on behalf of all the defendants. The remaining defendants, apart from Arahi Hagger and Victoria Edwards, have chosen not to take any part in these proceedings.

[16]   In the circumstances, in order to ensure more timely compliance with the orders of Harrison J, I make an order authorising this Court’s Registrar to sign the

1      Bruns v Freeth HC Auckland A. No. 990/85 9 March 1987.

2      Barge v Freeport Development Ltd (No 2) (2006) 7 NZCPR 414 (HC).

3      Toman v Toman HC Wellington, CIV-2009-485-765 3 February 2011.

necessary conveyancing documents to enable the transfer of Lots 10 and 11 to the plaintiff pursuant to s 3 of the Judicature Amendment Act 1910, including a land covenant (height restriction) over Lots 10 and 11 in favour of Lot 2 in the terms as set out in [4] of Harrison J’s orders of 20 August 2008. I have included Lot 11 within the terms of this order as subsequent to the orders of Harrison J, the Far North District Council has signified its intention to compulsorily acquire part of Lot 10 for the purposes of a road, which has been termed Lot 11. It will then be transferred to the Council.

[17]   I further order, in terms of [5] of Harrison J’s orders of 20 August 2008, that the sum of $10,000 be paid to the fifth defendant, Arahi Hagger, by the plaintiff – representing legal costs inclusive of GST.

[18]   The plaintiff does not seek costs against  the  defendants  apart  from  Victoria Edwards, the seventh defendant, who filed a statement of defence and put the plaintiff to unnecessary expense. In the circumstances, costs are awarded to the plaintiff against the seventh defendant on a 2B basis, to be approved by the Registrar.

[19]Orders accordingly.

Woolford J