Stirrup v Rahurahu
[2025] NZHC 269
•25 February 2025
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2024-463-73
[2025] NZHC 269
UNDER the Land Transfer Act 2017, section 143(2)(b) IN THE MATTER OF
an application to sustain a caveat
BETWEEN
HELENA STIRRUP
Applicant
AND
LEONIE RAHURAHU
Respondent
Hearing: 4 December 2024 Appearances:
D B Rendall for the Applicant Ian Harvey for the Respondent
Judgment:
25 February 2025
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Application for an order that caveat not lapse]
This judgment was delivered by me on 25 February 2025 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………. Registrar/Deputy Registrar
Solicitors:
O’Sullivan Clemens (David B Rendall), Rotorua, for the Applicant Lance & Lawson (Ian Harvey), Rotorua, for the Respondent
STIRRUP v RAHURAHU [2025] NZHC 269 [25 February 2025]
TABLE OF CONTENTS
Paragraph
Introduction [1]
Background [2]
Ms Stirrup’s application for order that caveat not lapse [10]
Ms Rahurahu’s opposition [11]
Legal principles [12]
Analysis [18]
Does Ms Stirrup have a caveatable interest in the Property? [20]
Ms Rahurahu’s submissions [25]
Caveat defective under the Regulations [26] No interest in the Property passed into the residuary estate [33] A residuary legatee has only a right to a share of the residue [34]
Result [41]
Exercise of the Court’s discretion [43]
Orders [50]
Introduction
[1] Ms Helena Stirrup (Ms Stirrup) applies for an order sustaining caveat number 12986523.1 (the caveat) lodged by her against 6 Dawson Drive, Ngongotaha, Rotorua with the record of title SA1001/133 (the Property). The application is opposed by the respondent, Ms Leonie Rahurahu (Ms Rahurahu).
Background
[2] Mr Hemi Colin Scott (Mr Scott) and Mrs Mary Anne Scott (Ms Scott) are the parents of Ms Stirrup and Ms Rahurahu.
[3]On 17 July 1986, the Property was transferred to Ms Scott’s sole name.
[4] On 13 August 1996, Ms Scott made a will (the Will) under which she appointed her son, Mr Jackie Colin Scott, and Ms Rahurahu as her executors. Under the Will, Ms Scott gave Mr Scott the conditional “use, occupation and enjoyment” of the Property until his death or remarriage. Upon Mr Scott’s death or remarriage the Property was bequeathed to Ms Rahurahu under the Will.
[5] Ms Scott died on 11 November 1997. On 11 December 1997, Mr Scott and Ms Rahurahu were granted probate of the Will and the title of the Property was transferred to Mr Scott and Ms Rahurahu as executors.
[6] Mr Scott occupied the Property until 2006. He remarried on 18 July 2008. On 24 June 2016, the Property was transferred to Ms Rahurahu’s sole name. Mr Scott died on 4 February 2024.
[7] On 17 April 2024, Ms Stirrup placed a caveat on the Property on the basis that she is a residuary beneficiary under the Will. Ms Stirrup claims that under the Will, only one-half share of the Property was bequeathed to Ms Rahurahu, and that the remaining half share became residue which was to be divided equally among the remaining children.
[8] Ms Rahurahu’s position is that Ms Scott’s intention was to leave the Property to her under the Will, subject to Mr Scott’s conditional “use, occupation, and enjoyment” of the Property until his death or remarriage. Ms Rahurahu accordingly applied for the caveat to lapse.
[9]Ms Stirrup now seeks an order that the caveat not lapse.
Ms Stirrup’s application for order that caveat not lapse
[10] Ms Stirrup seeks an order that the caveat not lapse.1 The grounds on which the orders are sought are:2
(a) an undivided one half share of the Property was left to the trustees of Ms Scott under the Will;
(b) Mr Scott was given the use, occupation and enjoyment thereof, so long as he remained a widower;
(c) upon either the death or remarriage of Mr Scott, the Property was to go to Ms Rahurahu;
(d) the residue was to go to Ms Scott’s children and her three whangai children.
Ms Rahurahu’s opposition
[11]Ms Rahurahu opposes the application on, in summary, the following grounds:3
(a) On 17 July 1986 the title to the Property was transferred into Ms Scott’s sole name. On 13 August 1996 Ms Scott signed a will under which she:
(i) appointed Ms Rahurahu and Mr Jackie Colin Scott as her executors;
1 Application that a caveat not lapse dated 25 June 2024 at [3].
2 At [4].
3 Amended notice of opposition dated 26 August 2024 at [3].
(ii)gave Mr Scott the benefit of a conditional “use, occupation and enjoyment” of a half share in the Property until his death or earlier remarriage;
(iii)gave the Property to Ms Rahurahu on Mr Scott’s death or earlier remarriage; and
(iv)gave her residuary estate to Ms Scott’s children (which includes Ms Stirrup and Ms Rahurahu) and John Wayne Karaitiana, Marama Karaitiana and Christopher Karaitiana.
(b) From 11 November 1997 until when Mr Scott remarried on 18 July 2008, Ms Rahurahu was the beneficial owner of the Property subject to Mr Scott’s conditional “use, occupation and enjoyment” of a half share in the Property until his death or earlier remarriage. Since 18 July 2008, Ms Rahurahu has been the sole beneficial owner of the Property and on 24 June 2016 the Property was transferred into Ms Rahurahu’s sole name.
(c) Mr Scott died on 4 February 2024. On 17 April 2024 Ms Stirrup placed the caveat on the title to the Property which stated:
Ain an estate of fee simple. The current owner was the executor of the will of Mari Ann Scott and i am one of the residuary beneficiaries of that Will and i understand that the estate administration has been completed.
The text of a caveat must be interpreted strictly and must clearly state the estate or interest claimed by the caveator and how that estate or interest is derived from the registered owner. The text of the caveat fails to comply with these requirements as it fails to state the basis on which the estate or interest is derived from the registered owner and thus it should lapse.
(d) In the alternative, Ms Stirrup has no grounds upon which to oppose the lapse of the caveat given that no interest in the Property passed under the Will into Ms Scott’s residuary estate and thus Ms Stirrup (whether as a residuary beneficiary or otherwise) does not have (and has never had) an estate or interest in the Property or a beneficial estate or interest in the Property under an express, implied, resulting or constructive trust.
As Ms Stirrup does not have (and has never had) such interests she is not (and has never been) entitled to register a caveat against the Property and thus it should lapse.
(e) In the alternative, if (which is denied) any interest in the Property was (or is) part of the residuary estate under the Will, Ms Stirrup’s interest in the residuary estate:
(i) is only a right to a share of the residue of Ms Scott’s estate after the Property (and all other residuary assets) have been sold and all debts, expenses of sale and other testamentary expenses have been paid;
(ii)has not been ascertained as the Property has not yet been sold and the administration of Ms Scott’s estate has not been completed; and
(iii)is not an interest which entitles Ms Stirrup to register a caveat and thus the caveat should lapse.
(f) Further and in the alternative, subject to [11](g) below:
(i) Ms Rahurahu is prepared to agree (for the sake of bringing the proceedings to a swift conclusion) to either:
1) the orders set out in paragraphs 1 to 5 of the First Schedule to the notice of opposition; or
2) the orders set out in paragraphs 1 to 5 of the Second Schedule to the notice of opposition.
(ii)In those circumstances:
1) there is no practical advantage of maintaining the caveat as Ms Stirrup’s alleged interests will not be prejudiced by the lapse/removal of the caveat;
2) there is no benefit to Ms Stirrup of the continuance of the caveat;
3) the Court should exercise its residual discretion and order the lapse/removal of the caveat.
(g) If Ms Stirrup does not agree to paragraph 5 of the orders set out in the First Schedule or Second Schedule to the notice of opposition, or causes her application to proceed to a contested hearing, Ms Rahurahu claims the legal costs and disbursements of and incidental to Ms Stirrup’s application from Ms Stirrup.
Legal principles
[12]Section 138 of the Land Transfer Act 2017 provides, relevantly:
138 Caveats against dealings with land
(1)A person may lodge a caveat against dealings with an estate or interest in land (a caveat against dealings) on the basis that the person—
(a)claims an estate or interest in the land, whether capable of registration or not; or
(b)has a beneficial estate or interest in land under an express, implied, resulting or constructive trust[.]
…
[13]Schedule 2 of the Land Transfer Regulations 2018 provides:
Caveat against dealings document
A description of the nature of the estate or interest claimed by the caveator (which must be stated with sufficient certainty) or, for a caveat under section 138(1)(d)(ii) of the Act, the matters that establish that there is a risk that the estate of interest may be lost through fraud.
Details of how the estate or interest claimed is derived from the registered owner.
[14] The principles governing the determination of applications to sustain caveats are well-established.4 The onus is on the caveator to demonstrate an interest in the land sufficient to support the caveat, and the caveator must demonstrate a reasonably arguable case to support the claimed interest.5 This means the caveator need not definitively establish his or her right to the interest.
[15] The process by which applications to sustain a caveat are determined is ill- suited to resolving disputed factual questions. An order for removal will only be made if it is clear the caveat cannot be maintained — either because there was no valid ground for its lodging in the first place, or because the ground on which it was lodged has now ceased to exist.
[16] Although the onus of proof lies with the caveator, any conflict between affidavits will generally be resolved in the caveator’s favour.6 This is not to say that the Court is bound to accept uncritically statements in an affidavit that lack precision, are equivocal, inconsistent with the documentary evidence or other statements of the same deponent, or inherently improbable.7
[17] While the Court retains a residual discretion to remove a caveat or allow it to lapse even if the caveator has a legitimate and caveatable interest, that discretion is to be exercised cautiously. The Court must be completely satisfied removal would not prejudice the caveator’s legitimate interests.8
Analysis
[18]The issues to be determined in this judgment are:
4 See generally Philpott v Noble Investments Ltd [2015] NZCA 342 at [26]. And, for a general statement of the principles, see Wallace v Studio New Zealand Ltd [2021] NZCA 392 at [39]–[41].
5 Botany Land Development Ltd v Auckland Council [2014] NZCA 61 at [24]–[25].
6 Bethell v Rickard [2013] NZCA 68 at [22]. See also MacRae v Rapana HC Auckland M633/94, 17 June 1994.
7 Barrett v IBC International Ltd [1995] 3 NZLR 170 (CA) at 175, citing Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 (PC) at 341; and Xie v 126 Waimumu Ltd [2020] NZHC 1109 at [8].
8 Pacific Homes Limited (in rec) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA) at 656.
(a)Does Ms Stirrup have a caveatable interest in the Property?
(b)If so, should the Court nevertheless exercise its discretion to remove the caveat?
[19]I deal with each of these issues in turn.
Does Ms Stirrup have a caveatable interest in the Property?
[20] Mr Rendall, for Ms Stirrup, submits that Ms Stirrup is a beneficiary of Ms Scott’s estate and the Will provided for a life interest in favour of Mr Scott, and upon Mr Scott remarrying on 18 July 2008, his life interest was extinguished and the administration of Ms Scott’s estate was completed.
[21] Mr Rendall submits that the treatment of the Property by Ms Rahurahu demonstrates that the administration of Ms Scott’s estate was complete and Ms Rahurahu was holding the Property as trustee for the beneficiaries. He submits that:
(a)Ms Rahurahu was treating the Property as her own and in doing so secured finance by way of a caveat in 2008 and then by means of a mortgage as early as June 2016. The money secured by the mortgage was used by her personally in breach of her fiduciary duties as trustee;
(b)The residual administration required under the Will by Ms Rahurahu was complete in 2008 at the point when Mr Scott remarried and the Property since 2008, for 16 years, has been held in trust for Ms Stirrup and the other beneficiaries, notwithstanding the mortgages placed over the Property by the borrowings secured since 2008, which were undertaken without the approval or knowledge of the beneficiaries of the Trust.
[22] Mr Rendall relies on the decision of Rutherford v Rutherford9 as authority for the proposition that once administration of an estate is completed, a residuary beneficiary can have a caveatable interest in the land held on trust by the trustees. He submits that when executors have completed the administration of the estate they begin at that point to hold the estate as trustee for the beneficiaries and the period of administration of the estate can cease even without distribution where there is a transition to an office of trustee.
[23] Mr Rendall submits that Ms Stirrup is not a discretionary beneficiary, but she is an identifiable specific beneficiary and has, along with the other beneficiaries, a proprietary interest in the Property that has been held on trust for the last 16 years since the life interest of Mr Scott was extinguished.
[24] As to the argument put forward by counsel for Ms Rahurahu that Ms Stirrup, as a residuary beneficiary, has only an interest in the money that comes from the estate assets, he submits that the administration has been competed (in this case, 16 years ago) and since then the Property has been held in trust for the beneficiaries including Ms Stirrup. He submits that since 2008, the Property has been used for other purposes than that permitted under the Will, and it is clear from the period of time elapsed that Ms Rahurahu had concluded any and all of the administrative tasks required under the Will. Consequently, he argues that the Property was held in trust with Ms Stirrup as a beneficiary of that trust and she has a proprietary interest in the Property.
Ms Rahurahu’s submissions
[25] Mr Harvey, for Ms Rahurahu, submits the caveat should lapse on three grounds:
(a)The caveat does not comply with the prescribed information required under Regulation 5(1) and Schedule 2 of the Land Transfer Regulations 2018 (the Regulations).
9 Rutherford v Rutherford [2015] NZHC 878.
(b)No interest in the Property passed into the residuary estate of Ms Scott, and therefore Ms Stirrup does not have an estate or interest in the Property or a beneficial estate or interest in the Property under an express, implied, resulting or constructive trust.
(c)Ms Stirrup, as a residuary legatee under Ms Scott’s estate, has a right to a share of the residue only.
Caveat defective under the Regulations
[26] Mr Harvey submits that the caveat does not comply with Reg 5(1), 5(2)(f) and Schedule 2 of the Regulations. He submits the requirements are:
If the instrument applies only to a part or share of the estate or interest in the record of title, instrument, or document a description of that part or share.
A description of the nature of the estate or interest claimed by the caveator (which must be stated with sufficient certainty) …
Details of how the estate or interest claimed is derived from the registered proprietor.
[27]Mr Harvey notes the caveat states:
Ain an estate of fee simple. The current owner was the executor of the will of Mari Ann Scott and i am one of the residuary beneficiaries of that Will and i understand that the estate administration has been completed.
[28]Mr Harvey submits the caveat is defective as:
(a)it does not state how the claimed alleged estate of fee simple “is derived from the registered owner”.
(b)it does not explain how or why, as a residuary beneficiary of any Will, Ms Stirrup asserts that she is entitled to the alleged “estate in fee simple”; and
(c)it does not state that the caveat relates to an alleged share of an alleged “estate in fee simple” or what Ms Stirrup’s alleged share of the “estate in fee simple” is.
[29] He submits that as the caveat requirements are mandatory and have not been met, the caveat should lapse.
[30] Mr Rendall did not address these issues in his submissions. I am of the view that the approach taken by the Court of Appeal in Zhong v Wang should be followed. In that decision the Court advocated against taking too strict an approach to the interpretation of caveats, stating:10
The purpose of the caveat procedure is to enable those with proper claims to a proprietary interest to protect themselves against loss by forbidding dealing with the land pending resolution of the substantive claims. The underlying purpose of the caveat régime could be undermined if too strict an approach were taken to the detail required to describe the interest claimed and its derivation from the registered proprietor.
[31] In my view, while the language of the caveat could obviously be improved, it describes Ms Stirrup’s interest as a beneficiary under the Will of Ms Scott and the link to the current registered owner, Ms Rahurahu, as executor of the Will of Ms Scott. The notation relating to the “estate administration has been completed” can be taken as a reference to the argument put forward by Ms Stirrup that as the administration of the estate has been completed, the Property is held as a trustee by Ms Rahurahu, thereby creating the proprietary interest she claims as a specified beneficiary.
[32] Adopting the Court of Appeal’s approach in the Zhong decision, I am of the view that the deficiencies in the language of the caveat are not sufficient to justify lapsing the caveat.
No interest in the Property passed into the residuary estate
[33] Mr Harvey submits that Ms Stirrup, whether as a residuary beneficiary or otherwise, does not have an estate or interest in the Property nor a beneficial estate or interest in the Property under any express, implied, resulting or constructive trust. He submits this on the basis of the following facts:
(a)Ms Scott knew in August 1996 when she made the Will that the Property was registered in her sole name and was owned solely by her,
10 Zhong v Wang CA282/05 (5 September 2006) at [58].
and that Ms Scott and Mr Scott had agreed (by a matrimonial property agreement dated 19 April 1986) that the Property would be Ms Scott’s “sole and separate property”. The Property was transferred into her sole name on 17 July 1986.
(b)Ms Scott did not own a “one-half undivided share” in the Property at the time she signed the Will or when she died.
(c)Ms Scott’s intention under the Will was to allow Mr Scott to have the use, occupation and enjoyment of the Property until his death or earlier remarriage.
(d)The clause in the Will stating that on death or earlier remarriage of Mr Scott “my said property is to go to my daughter, Leonie Scott” was a reference to the whole of the Property not a one-half undivided share in the Property and there are no words limiting the extent of the gift of the Property to Ms Rahurahu.
A residuary legatee has only a right to a share of the residue
[34] Mr Harvey references Guardian Trust & Executors Co of New Zealand v Hall,11 and advances the proposition that when the residue of a residuary estate has been ascertained:
(a)the residuary beneficiary’s only interest is merely a right to a share in the net proceeds of sale of the testator’s property; and
(b)a residuary beneficiary’s only right is for the estate to be administered so that they receive their share of the net proceeds of sale of the testator’s property.
[35] He submits a residuary beneficiary does not gain a title to the testator’s property or an estate in fee simple in the testator’s property.
11 Guardian Trust and Executors Co of New Zealand v Hall [1938] NZLC 1010 (CA).
[36] Mr Harvey relies on Macfarlane v Perpetual Trustee Ltd, where the Court of Appeal held:12
[14] Mr Macfarlane accepted as he did in the High Court that, as a general rule, the residuary beneficiaries of an estate do not have a proprietary interest in any particular estate asset sufficient to support a caveat. All they have is a personal right to compel the testator’s personal representatives to administer the estate in accordance with the terms of the will. These propositions are well established, and were confirmed by this Court in Guardian Trust and Executors Co of New Zealand Ltd v Hall.
[15] However, Mr Macfarlane argued that those principles did not apply to this case for two reasons.
[16] The first was that unlike the estate in Guardian Trust, the administration of his father’s estate had been completed and therefore, at all relevant times, Perpetual was acting as a trustee, not executor. The case was thus governed by standard principles of trust law. Perpetual held the legal title to the homestead property as trustee. He, as a beneficiary of the trust, had an equitable beneficial interest in the property and that was sufficient to support the caveat.
[17] We agree it is arguable the administration of the estate had been completed at least on the death of Mr Macfarlane’s mother. However, in our view even if that is so, it still does not assist Mr Macfarlane. Although the beneficiary of a trust can caveat property held by the trust, the beneficiary must still be a fixed beneficiary with a specific right to the property sought to be caveated. The interest must be more than a general interest in the proceeds from the sale of the property, which is the only interest that Mr Macfarlane holds. Mr Macfarlane conceded Perpetual was able to sell the property, he merely objected to this particular sale.
[18] It follows we agree with the Associate Judge that “regardless of whether the administration of the [e]state [was] complete, Mr Macfarlane only has an interest in the value of the [p]roperty, which is incapable of sustaining a caveat”.
[37] Mr Harvey submits that the Macfarlane decision is authority for the proposition that a residuary beneficiary merely has a general interest in the proceeds of the sale of a property which is within the residuary estate, and an interest in the value of the property which is not capable of sustaining a caveat. Consequently, he submits that if any interest in the Property was or is part of the residuary estate under Ms Scott’s Will, then Ms Stirrup’s interest in the residuary estate:
12 Macfarlane v Perpetual Trustee Ltd [2018] NZCA 311 at [14]-[18].
(a)is the right to share in any residue of the estate after the Property (and all other residuary assets) have been sold and all debts, expenses of sale and other testamentary expenses have been paid;
(b)has not been ascertained as the Property has not yet been sold and the net proceeds of sale quantified, and thus the administration of Ms Scott’s estate has not been completed;
(c)will only be ascertained when the Property has been sold and the net proceeds of sale quantified; and
(d)is merely, even if the administration of the estate is complete (which is denied) a general interest in the proceeds of sale of the Property and an interest in the value of the Property which is not capable of sustaining the caveat.
[38] In response to the reliance by Mr Harvey on the Macfarlane decision, Mr Rendall seeks to distinguish it from the present case. In that case, while arguably the administration of the estate had been completed, Perpetual was holding the property on trust to sell as the final act of the administration of the estate and to distribute the funds. Mr Rendall submits that the property in the Macfarlane case had only become vacated recently with the death of the mother, and Perpetual was not holding the property on trust as a long-term trust asset. He says Ms Stirrup’s case is differentiated from the Macfarlane circumstances because:
(a)The trustee (Ms Rahurahu) had held the Property post-administration for over 16 years.
(b)The trustee was using the Property fraudulently insofar as it was using it for her personal borrowing taking out mortgages without the knowledge of the beneficiaries and using those funds for personal benefits.
(c)The trustee intended to sell the Property and not account for any part thereof as the proprietary interest established by the trust.
[39] Mr Rendall submits the actions of Ms Rahurahu as trustee of the Property have established a clear proprietary right in favour of Ms Stirrup and the behaviour of Ms Rahurahu and her specific dealings with the Property provided that some of those assets would be held in trust and therefore meet the proprietary interest test under s 138 of the Land Transfer Act 2017.
[40] Mr Rendall submits Ms Stirrup was not one of the discretionary beneficiaries of the trust but a specific beneficiary with a proprietary interest under the trust, with the trust asset being the Property.
Result
[41] I am of the view that it is reasonably arguable that Ms Stirrup has a proprietary interest in the Property sufficient to sustain the caveat.
[42]The reasons for my view are:
(a)It is arguable that the life interest granted by Ms Scott to her husband was only applied to undivided one-half interest in the Property, and the remaining undivided one-half interest formed part of the residue of Ms Scott’s estate. Therefore it is arguable that Ms Stirrup could have a proprietary interest in the Property as a specified residuary beneficiary under the estate.
(b)It is arguable that the administration of Ms Scott’s estate has been completed and given the long period of time, 16 years, during which the Property was held, and that the Property has been held as a trust asset. Under the authority of Rutherford v Rutherford,13 it is arguable that in those circumstances Ms Stirrup, as a residuary beneficiary, has a caveatable interest in the Property held by Ms Rahurahu as trustee.
13 Rutherford v Rutherford
(c)Ms Stirrup is identified as one of the specific beneficiaries, being Ms Scott’s children together with her whangai children.
(d)The actions of Ms Rahurahu in raising funds against the Property for her personal use and the expectation by Ms Rahurahu had that she could sell the Property without accounting to Ms Stirrup for any part of the proceeds, reinforces the view that administration of Ms Scott’s estate was arguably complete and the Property was held by her as trustee. In those circumstances, Ms Stirrup could arguably have a beneficial interest in the residue of the estate (which included a half interest in the Property) sufficient to support a caveat.
Exercise of the Court’s discretion
[43] Having determined that Ms Stirrup has an arguable interest in the Property sufficient to support a caveat, the Court needs to consider whether nevertheless it should exercise its discretion to remove the caveat.
[44] As noted at [17], that discretion is to be exercised cautiously and the Court must be completely satisfied that removal would not prejudice the caveator’s interest.
[45] Mr Harvey’s fourth submission is that the proposed offers made by Ms Rahurahu as set out in the First and Second Schedules of her notice of opposition dated 26 August 2024, gave Ms Stirrup an interest in half the net proceeds of the Property when it is sold, and that the effect of Proposal 1 and Proposal 2 is that Ms Stirrup would receive her share of the net proceeds once the Property is sold and accordingly:
(a)there is no practical advantage in maintaining the caveat;
(b)Ms Stirrup’s alleged interest in Ms Scott’s residuary estate will not be prejudiced by the removal of the caveat, to the contrary they will be enhanced by removal of the caveat as Ms Stirrup shall receive her share of the net proceeds of the Property once it is sold;
(c)Ms Stirrup will receive no benefit from the continuation of the caveat; and
(d)the Court should exercise its residual discretion and order the lapse and removal of the caveat.
[46] As to giving the residuary beneficiaries a right to make a first offer to purchase the Property, Mr Harvey submits that Ms Rahurahu is of the view that neither Ms Stirrup nor any of the other residuary beneficiaries of the Will have the finances to purchase the Property as, if they had the finance, they would have made it clear by now and made an offer to purchase the Property. Accordingly, he submits that it is not appropriate that:
(a)the residuary beneficiaries should be given a right of first refusal to purchase the Property; and
(b)any person who is not a party to the proceedings should be given the right of first refusal to purchase the Property.
[47] Mr Harvey filed a memorandum dated 3 December 2024, with a third proposal which incorporates a right of first refusal to purchase the Property in favour of the residuary beneficiaries of the Will. As at the time of the hearing on 4 December 2024, Mr Harvey advised the Court that there had been no response to that proposal from Ms Stirrup.
[48] The alternative set out in Mr Rendall’s submissions involves Ms Rahurahu granting the residuary beneficiaries a right of first refusal to purchase the Property. He proposes that if they are unable to purchase the Property, the caveat could be removed on the basis that a sale of the Property is allowed to proceed and the settlement funds are held in a solicitor’s trust account, from where one-half share of the net proceeds can be distributed to the residuary beneficiaries, with one-half share of the net proceeds less any mortgages being deducted to be paid to Ms Rahurahu.
[49] While I am not prepared to exercise the Court’s discretion to remove the caveat at this point, it seems that the latest proposal made by Ms Rahurahu to Ms Stirrup on 2 December 2024 and the alternative proposal set out in Mr Rendall’s submissions are not too dissimilar, both involving giving the residuary beneficiaries a right of first refusal to purchase the Property, and if that right is not exercised, the Property being sold with the proceeds being held in trust and then divided 50 per cent to the residuary beneficiaries and 50 per cent (less outstanding mortgages) to Ms Rahurahu. Accordingly, I invite the parties to confer and if possible reach an agreement on a proposal which can be incorporated in a consent order.
Orders
[50]I make the following orders:
(a)The caveat is not to lapse.
(b)As Ms Stirrup is the successful party, costs should follow the event. Counsel are directed to endeavour to agree costs and failing agreement being reached within a period of 20 working days from the date of this judgment, counsel for Ms Stirrup will file a memorandum as to costs (not to exceed five pages) within 5 working days after the expiry of the 20 working day period, and counsel for Ms Rahurahu will file a memorandum (not to exceed five pages) in response within 5 working days of receipt of counsel for Ms Stirrup’s memorandum. A decision as to costs will then be made on the papers.
……………………………..
Associate Judge Taylor
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