Poidevin

[2021] NZHC 2850

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-0234

[2021] NZHC 2850

IN THE MATTER OF

the Land Transfer Act 1952

AND

IN THE MATTER OF

CHRISTINE FAITH LE POIDEVIN, HEATHER MARIE NAYLOR AND PAUL STEPHEN RICKARD AS TRUSTEES OF THE BLACKBURN FAMILY TRUST

Applicants

Hearing:

22 October 2021 (by telephone)

Appearances:

B J Callaghan for Applicants

G W D Manktelow for Executrix of the Estate of Janice Blackburn

Judgment:

22 October 2021

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 22 October 2021 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: .................................

Solicitors:McGillivray Callaghan & Co, Christchurch Guy Manktelow, Lower Hutt

[1]                 By originating application dated 21 September 2021, the applicants seek orders pursuant to s 133 Land Transfer Act 1952 (“Act”) and in particular:

(a)effecting the transfer of the property at 9 York Place, Matamata as contained in Record of Title Identifier SA2B/1030 (“the property” or “the title”) to the applicants, in their capacity as the current trustees of the Blackburn Family Trust (“trust”); and

(b)that the words “No Survivorship” be removed from the title.

Background

[2]                 The trust was settled by Ms Janice Dawn Blackburn in 2005. Ms Blackburn died on 14 April 2019. The executrix of her estate is J M Greally of Lower Hutt, Solicitor.

[3]                 The applicants are the trustees of the trust (“trustees”).  All are siblings of  Ms Blackburn. Ms Le Poidevin and Ms Naylor, the first two named applicants, and their issue are the final beneficiaries of the trust.

[4]                 The  trust’s  sole  asset  is  the  property.   The  trustees   are  indebted   to   Ms Blackburn’s estate in the sum of $133,000 (“debt”). That debt can only be repaid by a sale of the property, which is what the trustees propose. As appears below, the executrix also wishes the debt to be repaid.

[5]                 At present, the title has a “No Survivorship” notation against it. The effect of the notation, coupled with Ms Blackburn’s death, is to prevent registration of any dealings without order  of  the  Court.  Accordingly,  as  yet,  no  transmission  to  Ms Le Poidevin and Ms Naylor has been registered and nor has the title been transferred into the names of the trustees. Both would be necessary before the trustees could effect a sale of the property to a third party.

[6]                 Hence counsel for the applicants, Mr Callaghan, seeks an order removing the “No Survivorship” notation from the title, there being power to make such an order pursuant to s 133 of the Act. If the notation is removed, the dealings to which I have

referred can be registered, and a real estate agent engaged. I add that I am not persuaded I have power to make the order sought in [1](a) above, and nor does it seem necessary if I make the order in [1](b) above.

[7]                 In the first instance, the application was referred to me to deal with on the papers. However, in a recent memorandum, counsel for the applicants, Mr Callaghan, advised that the executrix has herself filed proceedings. Given that, this morning I had a telephone conference with Mr Callaghan and Mr Manktelow who is acting for the executrix.

[8]                 Mr Callaghan confirmed to me that the trustees acknowledge the debt due, that they wish to sell the property and repay that debt, and indeed that Ms Le Poidevin has already had preliminary discussions with a real estate agent. That said, some “make good” to the property may be required before it is marketed for sale.

[9]                 In a memorandum he filed on 22 October 2021, Mr Manktelow advised me that the executrix has proceedings on foot in both the High Court at Wellington and in the District Court at Wellington and that, in the latter proceeding, the executrix is seeking summary judgment in respect of the debt — which, as I have said, the trustees do not dispute but which cannot be paid absent a sale of the property.

[10]              Mr Manktelow advised me that he does not object in principle to what is proposed but, naturally, is concerned to protect the executrix’s position to ensure that the debt is in fact paid promptly on the sale of the property. Mr Manktelow’s preference would have been to lodge a caveat against the title. However, that would be another matter to contend with in terms of registering future dealings, potentially leading to cost and delay, and it might also constitute a deterrent to a purchaser. Accordingly, it is undesirable that occur. Moreover, I am not entirely sure that the executrix has a caveatable interest in the property, which she would need to lodge a caveat.

[11]              Given that, and as discussed with counsel, I consider the most expeditious and efficient way to achieve the outcome sought by all is if I make the orders set out below, on conditions to secure the executrix’s position. Both Mr Callaghan and

Mr Manktelow confirmed this would be acceptable to them. Mr Manktelow also advised that the proceedings in the Wellington registries to which I have referred will be discontinued.

Orders

[12]              I make an order pursuant to s 133(2) Land Transfer Act 1952 ordering the removal of the word “No Survivorship” from Record of Title Identifier SA2B/1030.

[13]              I make that order on condition that the dealings referred to in [5] above will then be lodged, the property marketed for sale, and the debt repaid from the proceeds of sale, as soon as possible but by no later than 31 March 2022.

[14]                  If at any time Mr Callaghan anticipates difficulty in selling the property and repaying the debt by that date, then he is to advise the Court and Mr Manktelow without delay.

[15]I reserve leave to apply to both the applicants and the executrix.

Peters J