Region Broadview Limited v The Treasury of New Zealand

[2021] NZHC 1939

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2021-425-000055

[2021] NZHC 1939

BETWEEN

REGION BROADVIEW LIMITED

Applicant

AND

THE TREASURY OF NEW ZEALAND

First Respondent

AND

AMANDA JILL MULQUEEN, CRAIG

BERNHARD WILSON, BRENDAN JOHN ROBINSON, KEVIN WAYNE HARBORNE, PETER RAYMOND

CROSSMAN, SHERYL MARGARET SUISTED, LIN LIN, YUE ZHAO, RICHARD BRUCE GRAY, AND PAUL ALBERT DE REUS

Second Respondents

Hearing:

27 July 2021

Appearances:

M J Hammer for Applicant

No appearance for Respondents

Judgment:

29 July 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 29 July 2021 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

REGION BROADVIEW LIMITED v THE TREASURY OF NEW ZEALAND [2021] NZHC 1939 [29 July 2021]

[1]This is an application for:

(a)leave to commence proceedings by way of originating application; and

(b)an order pursuant to s 324(4) of the Companies Act 1993 that the one eighth share of Lot 15, Deposited Plan 19666 contained in record of title OT11D/1455 vest in the applicant, Region Broadview Ltd.

Background

[2]        The applicant, Region Broadview Ltd (Region Broadview), owns land in Sunshine Bay, Queenstown which it is planning to subdivide into 23 residential lots. It has a resource consent for the subdivision which was issued on 9 March 2021. The land Region Broadview seeks to subdivide is contained in various land titles that have a share in an access lot known as Miller Place. The legal description of the access lot is Lot 15 DP19666 and it is used by various landowners who have a share in it.

[3]        The resource consent for the subdivision requires Region Broadview to vest Miller Place as a road. To do that, the consent of all landowners with a share in Miller Place is required. That has been given by all landowners, save one landowner which still has a share  in  Miller  Place,  Sunshine  Bay  Development  Ltd (Sunshine Bay). I refer to this company’s share in Lot 15 DP 19666 as “the Sunshine Bay land share”.

[4]        The impediment is that Sunshine Bay was removed from the Companies Register on 26 August 1998 and both its directors are now deceased. The Sunshine Bay land share is therefore vested in the Crown1 and, for reasons set out below, it cannot consent to the vesting of the road.

[5]        Region Broadview believes that due to a historic error in a deposit of a subdivision plan, the Sunshine Bay land share was separated from an associated residential allotment, Lot 16 DP 19666 when that allotment was the subject of a boundary adjustment to become Lot 1 DP 20447. That land is now primarily contained

1      Pursuant to s 324(1) Companies Act 1993.

in Lot 1, DP20874 (Lot 1). Region Broadview is now the registered owner of Lot 1 and, had this mistake not been made, it would have been entitled to receive the Sunshine Bay land share as an associated title.

[6]        In any event, Ms Hammer, for the applicant, submits that the Sunshine Bay land share should be associated with Lot 1, as it is necessary that it be vested in an entity to allow any further action to be taken in respect of Miller Place, and, in particular, for it to be vested as a road, and no party would be prejudiced by that occurring.

Position of the respondents

The second respondents

[7]        The second respondents are all the other land owners who own shares in Miller Place, allowing them to use that lot for access to their properties. The second respondents have all indicated their consent to Miller Place being vested as a road and for the Sunshine Bay land share to be vested in Region Broadview for this purpose.

The first respondent

[8]        By letter dated 2 July 2021 the first respondent advised it did not object to the orders sought in the proceedings and would not be taking any steps in relation to it.

The s 324 application

[9]        Before giving my decision it is helpful to explain why this application is required and why The Treasury of New Zealand is named as a party.

[10]      Ms Bendikson, a property lawyer in the firm acting for Region Broadview, explains in her affidavit the steps that have been taken to try and rectify what she considers is an error, and why this application was ultimately made.

[11]      In early 2019 she lodged a request with Land Information New Zealand (LINZ) to correct the error pursuant to s 21 of the Land Transfer Act 2017. This request was declined but the other options recommended by the LINZ technical adviser were:

(a)reinstating Sunshine Bay for the purpose of transferring the share;

(b)applying to the High Court for the share to be vested in Region Broadview; or

(c)making a bona vacantia application to the Commissioner of Lands to transfer the Sunshine Bay land share to Region Broadview.

[12]      Ms Bendikson also explained that she made inquiries (via the Treasury) with LINZ as to whether it was possible to obtain either:

(a)a signed consent to vesting Miller Place as a road on behalf of the Crown as legal owner of the Sunshine Bay land share (notwithstanding that the record of title was still in the name of Sunshine Bay); or

(b)a transmission of the Sunshine Bay land share to the Crown, followed by a consent to the vesting of Miller Place.

[13]      A senior property adviser for LINZ’s Crown Property Group advised that s 2 of the Land Act 1948 prevented the Crown from holding land with another party. Furthermore, any time an action is taken by the Crown in relation to Crown land (such as executing consent to the vesting of the road), that land would become Crown land. Accordingly, the Commissioner of Lands cannot sign a consent to the vesting of Miller Place.

[14]      LINZ also suggested the possibility of all owners transferring their shares in Miller Place to the Crown, allowing the Crown to claim the Sunshine Bay land share by way of transmission. However, in Ms Bendikson’s view, this option was complicated and uncertain in respect of the timing and the need to involve the second respondents and satisfy them they were not disadvantaged by that course of action.

[15]      Given that Sunshine Bay could not be reinstated as both directors are now deceased, Region Broadview resolved to make this application under s 324(4) of the Companies Act. That subsection provides:

(4)Where property is vested in the Crown under this section, a person who would have been entitled to receive all or part of the property, or payment from the proceeds of its realisation, if it had been in the hands of the company immediately before the removal of the company from the New Zealand register, or any other person claiming through that person, may apply to the court for an order—

(a)vesting all or part of the property in that person; or

(b)for payment to that person by the Crown of compensation of an amount not greater than the value of the property.

Decision

[16]      Having read Ms Bendikson’s affidavit and in light of the fact there is no objection by any other party, I am satisfied that it is appropriate to make the orders sought for the following reasons:

(a)The originating application procedure is appropriate given the application is not contested and it is in the interests of justice that an expeditious process is adopted.

(b)There will be no prejudice or detriment to any other party as a result of the Sunshine Bay land share vesting in Region Broadview. The vesting does not affect the registered owners’ entitlement to use Miller Place for their access given they each own their own share in Miller Place which gives them usage rights.

(c)While the Sunshine Bay land share remains in Crown ownership, it thwarts the second respondents from taking any action in relation to Miller Place because to do so would require the consent of all registered owners, including the Crown, and the Crown has explained the difficulties it faces in such circumstances.

(d)The Sunshine Bay land share has no value as it is only a share in an access lot, and does not affect the way maintenance obligations in relation to Miller Place are apportioned by virtue of s 298 Property Law Act 2007.

(e)At the time Sunshine Bay was struck off the Companies Office register, the registered owner of Lot 1 would have been entitled to receive the Sunshine Bay land share, but for the error which is identified in Ms Bendikson’s affidavit where Lot 1 was de-amalgamated from that land share.

(f)Region Broadview is now the registered owner of Lot 1, and therefore it is appropriate that the associated one eighth share in Miller Place is transferred to it.

(g)While Treasury has been served with the application it has not sought to oppose it, nor have the other joint owners.

[17]      Accordingly, I am satisfied that it is appropriate to vest the Sunshine Bay land share (now vested in the Crown) under s 324(4) of the Companies Act, in Region Broadview.

Result

[18]I make the following orders:

(a)leave is granted for this application to be made by way of originating application;

(b)pursuant to s 324(4) of the Companies Act 1993 the one eighth share of Lot 15 Deposited Plan 19666 contained in record of title OT11D/1455 is to vest in the applicant, Region Broadview Ltd.

Solicitors:
Anderson Lloyd, Queenstown