Tahora Farm Forestry Limited, re HC Gisborne CIV 2010-416-135

[2010] NZHC 1236

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV 2010-416-135

IN THE MATTER OF	the Trustee Act 1956, section 52(1)(h)
AND
Hearing:	IN THE MATTER OF (on the papers)	TAHORA FARM FORESTRY LIMITED

Counsel:         D F Dugdale for Applicant

Judgment:      21 July 2010

JUDGMENT OF HEATH J

This judgment was delivered by me on 21 July 2010 at 3.00pm pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:

Lance Lawson, PO Box 2279, Rotorua (G J Dennett) Counsel:

D F Dugdale, PO Box 46 281, Herne Bay, Auckland

TAHORA FARM FORESTRY LTD HC GIS CIV 2010-416-135  21 July 2010

[1]      Tahora Farm Forestry Ltd (Tahora) seeks orders, on a “without notice” basis:

a)       Allowing   this   proceeding   to   be   commenced   by   originating application; and

b)Vesting in Tahora Farm Forestry Ltd, the estate in fee simple in the following three parcels of land currently registered in the name of Ronald Prebble Smith:

i)That parcel of land containing 17.7000 hectares more or less being Tahora No. 2A Sec 3B No. 4A Block and all the land in Certificate   of   Title   506936   Gisborne   Land   Registration District;

ii)That parcel of land containing 53.9000 hectares more or less being Tahora No. 2A Sec 3B No. 4B Block and all the land in Certificate of Title No. 506937 Gisborne Land Registration District;

iii)That parcel of land containing 184.3000 hectares more or less being Tahora No. 2A Sec 3B No. 5 Block and all the land in Certificate of Title No. 506938 Gisborne Land Registration District.

For convenience, I refer to the three blocks of land in issue as the “Tahora land”.

[2]      I am satisfied that there are no other affected persons to whom notice could reasonably be given[1]  and that it is appropriate for the application to be brought by originating application.[2]

[1] High Court Rules, r 7.46(3)(b) or (e).

[2] Ibid, r 19.5.

[3]      The Tahora land originally comprised three discrete, but contiguous, parcels of Maori land, each of which was transferred on different dates, between 1958 and

1966, to Mr Smith.  It seems that the prerequisites to alienation of the Maori land were met.[3]

[3] Re Tahora 2A3B4A and Other Blocks (2007) 95 Opotiki MB 180 (MLC) at para [12], per Judge Carter. 

[4]      After  completion  of  the  alienation  process,  memoranda  of  transfer  were executed and endorsed and then sent to the solicitors acting for Mr Smith.  However, the land was never registered under the Land Transfer Act 1952, apparently because Mr Smith was unable or unwilling to pay the necessary costs to have a survey plan deposited.

[5]      Subsequently, in 1967, Mr Smith transferred the land to Ronel Parklands Ltd. In March 1973, Ronel transferred the land to two forestry companies,  Waioeka Forests Ltd and Ohiwa Forests Ltd.   Later, companies within the Fletcher Group acquired shares in those companies and changed the name of Ohiwa Forests Ltd to Fletcher Forests Ltd.  As a result of restructuring within the Fletcher Group in early

1986, the one half share in Waioeka Forests Ltd in the land was also transferred to

Fletcher Forests Ltd.

[6]      Relevant documents demonstrating that title had passed were subsequently lost.  In or about May 2006, another Fletcher company, Tenon Industries Ltd, sold the land to East Woodlands Ltd.  The latter accepted prior transfers in the chain of ownership had been lost and was also prepared to act on photocopies of the missing transfers.  Subsequently, on 20 December 2006, East Woodlands Ltd sold the land to Mr Malpas, a director of Tahora.  Mr Malpas nominated Tahora to take title to the land.

[7]      On 3 December 2008, Tahora sought an order from the Maori Land Court restoring the effect of lost instruments of alienation and vesting the land in Mr Smith’s name.[4]   Judge Fox made the orders sought:[5]

[4] Te Ture Whenua Maori Act 1993, ss 25, 67 and 131.

[5] Re Tahora 2A3B4A and Other Blocks (2007) 106 Opotiki MB 114 (MLC) at 116.

WHEREAS application has been filed by Lance Lawson on behalf of Tahora

Farm Forestry to restore the effect of lost instruments being:

1.        Tahora 2A3B4A alienated by a memorandum of transfer dated 11

November 1958 by Rea Kora of Nukuhou.

2.        Tahora 2A3B4A alienated by a memorandum of transfer dated 9

May 1962 executed as agent of the Maori owners by the Maori

Trustee.

3. Tahora 2A3B No 5 alienated by a memorandum of transfer dated 13

January 1966 executed as agent of the Maori owners by the Maori

Trustee.

NOW THEREFORE the Court upon reading and hearing all evidence adduced in support thereof and being satisfied on all matters upon which it is required to be so satisfied HEREBY ORDERS pursuant to Section 25 of the Te Ture Whenua Maori Act 1993 that the effect of the aforesaid instruments is hereby restored and vesting the lands listed in the schedule hereto in Ronald Prebble Smith, solely.

[8]      The  position  having  been  reached  where  Mr  Smith  is  accepted  as  the registered proprietor of the Tahora lands and Tahora being a subsequent bona fide purchaser for value, I am satisfied that the land should be regarded as being held, in Mr Smith’s name, as a constructive trustee for Tahora.[6]    A vesting order would ensure that the registered title mirrors equitable ownership of the Tahora land.

[6] See also Re Rogers [1921] NZLR 245 (SC) and Re Craig’s Contract [1928] NZLR 303 (SC).

[9]      Section 52(1)(h) of the Trustee Act states:

52  Vesting orders of land

(1)    Subject to the provisions of subsections (2) and (3) of this section, in any of the following cases, namely—

...

(h)Where land or any interest therein  is  vested in  a trustee whether by way of mortgage or otherwise, and it appears to the Court to be expedient—

the Court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the Court may direct, or releasing or disposing of the contingent right to such person as the Court may direct.

....

[10]     In my view, it is “expedient” to make a vesting order, to enable the true ownership of the Tahora land to be reflected on the relevant titles.[7]

[7] See Yang v Stafford HC Auckland CIV 2003-404-6815, 17 August 2004 (Venning J) at paras [32]

and [33].

[11]     I make orders:

a)        Giving permission for the application to be brought by originating application.

b)        Vesting the land listed in para [1](b) above in Tahora.

c)        Granting  leave  to  apply,  in  case  anything  has  been  inadvertently overlooked.

Delivered at 3.00pm on 21 July 2010.

P R Heath J