Simmons v Gresson Dorman & Co

[2025] NZHC 3069

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2025-476-27

[2025] NZHC 3069

UNDER

Part 19 of the High Court Rules 2016 and s 142 of the Land Transfer Act 2017

IN THE MATTER OF

the Estate of MAUREEN ANN SIMMONS

BETWEEN

CHARLES HENRY SIMMONS

Applicant

AND

GRESSON DORMAN & CO

First Respondent

AND

NEIL SANDERS

Second Respondent

Hearing:

On the papers

Counsel:

D R Forman for the Applicant

C O'Connor for the First and Second Respondents

Judgment:

15 October 2025

JUDGMENT OF HARLAND J

[removal of Notice of Claim]

Introduction

[1]    This judgment determines an originating application seeking to remove a notice of claim under s 142 of the Land Transfer Act 2017 (LTA). Leave was granted earlier for the application to be brought under pt 19 of the High Court Rules 2016 (HCR) and the respondents were directed to be served.

SIMMONS v SANDERS [2025] NZHC 3069 [15 October 2025]

Background

[2]    The applicant is 89 years old and urgently requires rest home care. He is the registered proprietor of a property in which he and his wife (Maureen) resided together since their marriage on 18 August 2006.

[3]    In October 2019, Maureen registered a notice of claim against the title to the property under s 42(2) of the Property (Relationships) Act 1976 (PRA).

[4]    On 19 June 2023, Maureen died. The first respondent (Gresson's) is the solicitor representing Maureen's estate. Maureen's only son is the second respondent.

[5]    The applicant deposed that Maureen had battled health issues between 2013 and 2017, subsequently requiring fulltime care. On 21 March 2018, she was assessed by a medical practitioner to not have the capacity to make and understand her decisions. The applicant was subsequently appointed as her welfare guardian on 7 October 2021 and as her property manager on 21 June 2023.

[6]    During this time, after being appointed as Maureen's welfare guardian and property manager, the applicant had the power to take steps to remove the notice of claim, but he did not take any steps to do so. He deposed he was more concerned about Maureen's health and ensuring they spent time together while they still could.

[7]    Despite having been certified as having lost capacity on 21 March 2018 and unbeknown to the applicant, in around early June 2018 Maureen signed a Will dated 6 June 2018.

[8]    On 22 December 2023, the applicant applied to lapse the notice of claim but, because Gresson's claimed to have a valid Will for her, they obtained an order from the Family Court that the notice of claim not lapse on 18 January 2024.

[9]    On 26 August 2024, Gresson's advised that they would not be seeking probate and the second respondent advised he did not wish to take any further steps to pursue his mother's estate.

[10]   The applicant, Gresson's and the second respondent agreed to obtain an order from the Family Court discharging the order that the notice of claim not lapse. Such an order was obtained and is dated 22 October 2024.

[11]   The applicant then provided the order to Land Information New Zealand (LINZ). LINZ advised that the order was not registerable and the only way to remove the notice of claim would be to obtain a court order under s 142 of the LTA. This application has followed.

Discussion

[12]   A joint memorandum signed by all parties and dated 21 August 2025 has been filed. The joint memorandum outlines that the applicant:

(a)        urgently needs to go into rest home care;

(b)       he is not able to do so because he does not qualify for a rest home subsidy; and

(c)        due to the notice of claim on the title, he is prevented from obtaining a rest home loan.

[13]   Section 142 enables the Court to order that a caveat be removed upon application by a person who has an estate or interest affected by it.

[14]   The effect of s 42(3) of the PRA is that a notice of claim is to be treated as if it is a caveat, with the relevant the provisions of the LTA applying to it.1

[15]   Thus, the Court has the discretion to remove a notice of claim if its continuance will not provide the claimant with any practical advantage.2

[16]   Having considered the affidavits filed, the memoranda of counsel, and taking into account the respondents agreement to the application, I am satisfied it is appropriate to make the order as sought in the application.

1      Hayball v Lewis [1996] 1 NZLR 717, at [720].

2      74 Albert Street Ltd v Jones HC Tauranga CIV-2011-470-292, 23 August 2011 at [19].

[17]I make the following order pursuant to s 142 of the Land Transfer Act 2017:

(a)        the Notice of Claim registered against 20 Bowker Street, Timaru (Record of Title CB526/298) is removed.

[18]   The application did not seek an order for costs. It is likely that none is appropriate. I invite a further joint memorandum from counsel covering off that issue, to be filed by 5.00 pm on 24 October 2025.

Harland J

Solicitors:

RSM Law, Timaru.