Sutherland v Waitai

[2018] NZHC 2877

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2017-483-12 [2018] NZHC 2877

BETWEEN

RERE RAIMA SUTHERLAND

Plaintiff

AND

ERUERA TE KAHU WAITAI Defendant

Counsel:

J B Gilbert for plaintiff

Defendant in person

Judgment:

6 November 2018

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON [On the papers]

[1]      This proceeding involves a dispute between two trustees of a family trust.  In that capacity, they are the owners of an undivided half share in several blocks of land (the Waipu land).  A judicial settlement conference was convened on 27 June 2018. At the conclusion of that conference the parties executed a settlement agreement which provided in effect that they would accept an offer to purchase the Waipu land made by the owner of the other undivided half share, a Mr Douglas Duncan, unless the defendant was able, by 31 August 2018, to secure a more attractive offer.

[2]      The case was called again on 12 September 2018, as at which date Mr Duncan’s offer remained the only one on the table.

[3]      The plaintiff sought confirmation that the trustees were to accept that offer. The defendant asked for more time.  I indicated that I did not regard the Court as having  jurisdiction  to  extend  the  time  agreed  by  the  parties  in  their  settlement

agreement, and directed that the trustees sell the land to Mr Duncan for $1,875,000, a

SUTHERLAND v WAITAI [2018] NZHC 2877 [6 November 2018]

figure that had in fact increased marginally since 27 June 2018.  I confirmed that in a minute issued later that day.

[4]      In that minute, I also recorded that there was a suggestion that the defendant might be reluctant to sign the necessary documentation (the contract and related conveyancing documentation), and I gave the plaintiff leave to apply in this proceeding for an order pursuant to pt 5 of the Trustee Act 1956 dispensing with the need for the defendant to sign that documentation if that became necessary.

[5]      By memorandum dated 26 October 2018 Mr Waugh for the plaintiff seeks a formal order in terms of the settlement agreement. He also seeks an order pursuant to pt 5 of the Act in the following terms:

This Court, being satisfied that it is expedient to do so in order to give effect to the Order made by the Court on 12 September 2018 that the trustees sell the Waipu land (as defined in the pleadings) to Douglas McKelvey Duncan or his nominee for $1,875,000, ought, orders that the Waipu land be vested solely in Rere Raima Sutherland.

[6]      I am satisfied that I have jurisdiction to make an order – effectively by consent, as evidenced by the settlement agreement – that the trustees sell the land to Mr Duncan on the proposed terms.  However, I do not think that, sitting as an Associate Judge, I have jurisdiction to make the supplementary order sought as quoted above.

[7]      Accordingly, I make an order in the terms of the draft order presented by

Mr Gilbert  with  his  memorandum,  which  reflects  the  terms  of  the  settlement agreement.

[8]      If the plaintiff requires an additional order pursuant to pt 5 of the Trustee Act in order to be able to give effect to the order I am making, she will have to make a formal application, supported as necessary by affidavit evidence, and that application will, in my view, have to be dealt with by a High Court judge (unless summary judgment is sought).

Associate Judge Johnston

Solicitors: Roger Crowley, Whanganui