Tiopira Popata Phares Wh�nau Trust

[2023] NZHC 240

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-000062

[2023] NZHC 240

UNDER

Section 132 and 133 Land Transfer Act 1952

and section 7 and clause 8 of Schedule 1 Land Transfer Act 2017

IN THE MATTER OF

an application seeking the transfer of land

titles GS6A/175, GS3C/879 and GS2C/1416 and removal of a ‘no survivorship’ notation from the titles

BETWEEN

VALENTINE TAKATAKA ORANGI PHARES and TAMAHAE TARE TIOPIRA

POPATA PHARES as Trustees of the
TIOPIRA POPATA PHARES WHĀNAU TRUST

Applicants

Hearing:	On the papers
Counsel:	O F Moorcroft for the Applicants
Judgment:	20 February 2023

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 20 February 2023 at 2:00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

Solicitors:
Harris Tate Limited, Tauranga

Re TIOPIRA POPATA PHARES WHĀNAU TRUST [2023] NZHC 240 [20 February 2023]

[1]    The applicants, Valentine Takataka Orangi Phares (Valentine) and Tamahae Tare Tiopira Popata Phares (Tama) are the trustees of the Tiopira Popata Phares Whānau Trust (the Trust). They apply by way of originating application for orders pursuant to ss 132 and 133 of the Land Transfer Act 1952 (the LTA 1952):

(a)directing the transfer of properties registered in the names of former trustees of the Trust to them both as the current trustees; and

(b)removing the words “No survivorship” from the titles to the properties.

Background

[2]    The following summary is drawn principally from an affidavit sworn by Valentine in April 2022.

[3]    The Trust was settled by deed dated 6 August 2000 in accordance with directions made in the will of Tiopira Popata Phares (Tiopira), the father of Valentine and Tama. Tiopira died in January 1997. Despite its name, the Trust is not a whānau trust constituted in accordance with the Te Ture Whenua Maori Act 1993.

[4]    The Trust property comprises three adjoining properties in Te Kaha, which had been owned by Tiopira and have been in the Phares whānau for many generations.

[5]    The original trustees were Valentine and his half-sister Isobelle Matekeno Dufresne Ngamoki (Isobelle).

[6]In June 2014:

(a)the Māori Land Court ordered the removal of Isobelle as trustee and vested the properties in Valentine “as responsible trustee, no survivorship”;

(b)Joe Tiopira Orangi Phares (Joe), a brother of Valentine, was appointed trustee; and

(c)the Māori Land Court vested the properties in Valentine and Joe “as responsible trustees jointly, no survivorship”.

[7]The words of the Court order were recorded on the titles to the properties.

[8]    Joe, who was a brother of Valentine and Tama, died in April 2015. By that time, a third trustee, Erueti Koopu (Erueti), had been appointed trustee. However, Erueti resigned as trustee in August 2017, following the appointment of Tama as trustee in March 2017.

[9]    As a result, Valentine and Tama are the current trustees. They are also beneficiaries of the Trust.

[10]The other beneficiaries are:

(a)Isobelle;

(b)Blake Phares, a son of Joe; and

(c), another son of Joe and half-brother to Blake.

The application

[11]   The purpose of the application is to enable Valentine and Tama to administer the Trust and, in particular, to give effect to a settlement they have reached, in their capacity as trustees, with Isobelle. Under the settlement, a part of the land of the Trust properties on which Isobelle has built a house will be resettled on a trust in which Isobelle is a beneficiary. Isobelle will have an exclusive right to occupy that part of the land.

[12]   To give effect to the settlement, Valentine and Tama must be able to deal with the land. However, s 132 of the LTA 1952 prevents the registration of the transfer of the properties from Valentine, the surviving registered joint tenant, to Valentine and Tama, the current trustees.

[13]   Accordingly, Valentine and Tama seek the Court’s sanction to the transfer of the properties by Valentine, as surviving registered proprietor, to Valentine and Tama, as the current trustees. They also seek the removal of the words “No survivorship” from the titles.

[14]   The other beneficiaries have been advised of the application, and of the reasons for it. They have consented to the application, either on their own behalf or through their guardians. The Registrar-General of Lands has advised he will abide by the decision of the Court.1 Advertising of the application in the Gazette and local newspapers in accordance with s 133(1) of the LTA 1952 was dispensed with.2

Relevant law

[15]   Despite the repeal of the LTA 1952 by the Land Transfer Act 2017 (LTA 2017), in accordance with cl 8 of sch 1 of the LTA 2017, ss 132 and 133 of the LTA 1952 continue to apply to land where the words “no survivorship” are noted on the title to that land under ss 130 and 131 of the LTA 1952.

[16]   Under s 130 of the LTA 1952, the transferor of any land to two or more persons as joint proprietors “may” insert the words “No survivorship” in the memorandum of transfer. The Registrar of Lands was then required to note the same in the register and on the certificate of title.

[17]   Section 131 provides that persons registered as joint proprietors of land “may” authorise the Registrar to enter the words “No survivorship” upon the certificate of title to that land.

[18]   Section 132 provides that, where the words “No survivorship” have been entered onto a certificate of title, it is not lawful “for any less number of joint

1      The proceedings were served on the other beneficiaries or their representatives and on the Registrar-General in accordance with directions of Sussock AJ; Re Tiopira Popata Phares Whānau Trust HC Tauranga CIV-2022-470-62, 29 July 2022 (Minute of Associate Judge Sussock).

2      Re Tiopira Popata Phares Whānau Trust HC Tauranga CIV-2022-470-62, 6 December 2022 (Minute of Associate Judge Sussock).

proprietors than the number then registered to transfer or otherwise deal with the land… without obtaining the sanction of the High Court”.

[19]   Under s 133(2), and after the notice requirements in s 133(1) have been addressed, the Court may give directions for the transfer of the land and may order the removal of the words “no survivorship” from a certificate of title or may make such order as the Court thinks just for the protection of the persons beneficially interested in the land.

Discussion

[20]   It is implicit in ss 130 and 131 of the LTA 1952 that a “No survivorship” notation was to be included on a transfer or certificate of title at the initiative of the transferor or registered proprietor.

[21]   Valentine does not know why the “No survivorship” notation was included when the Māori Land Court vested the properties in himself and Joe. He speculates that the Court may have considered the designation appropriate because Isobelle’s actions as trustee were under scrutiny and there was a dispute within the family about the administration of the Trust. Counsel for the applicant observe that such a notation was standard practice at that time when whānau trusts were established.

[22]   Whatever the reason for the notation, it was not part of the original arrangement put in place when the Trust was first established. It appears not to have been asked for when the Māori Land Court was asked to remove Isobelle as trustee and to vest title to the properties in Valentine and Joe.

[23]   In addition, whatever the policy rationale for the restrictions in ss 132 and 133 of the LTA 1952, those restrictions were not carried forward in the LTA 2017. The restrictions apply only to those titles on which a “No survivorship” notation was recorded prior to the LTA 2017 coming into force.

[24]   As discussed in Sell v Registrar-General of Land,3 the function of the “No survivorship” notation was to alert persons dealing with the Land Registry to the fact that the registered proprietors are trustees. The “sanction” of the Court was intended to be limited to changes in the number and the identity of the proprietors.

[25]   In the present case, there can be no concern from the perspective of the current beneficiaries, whether as to number or identity, that properties intended to be properties of the Trust are to be transferred to the current trustees. In addition, the beneficiaries all consent to the application. For these reasons, I am satisfied that the transfer of the properties from Valentine as surviving registered proprietor to Valentine and Tama is appropriate and should be sanctioned.

[26]As to the removal of the “No survivorship” notation, in Re McCullough,

Associate Judge Lester observed:4

[19]      The efficacy of the use of the “no survivorship” notation as a means of protecting beneficiaries can be summed up by the fact that the ability to add such a notation is not continued under the Land Transfer Act 2017. …

[20]      The great majority of family trusts function perfectly well without the presence of a “no survivorship” notation. …

[27]   These observations were cited with approval by Muir J in Re Hosken Family Trust.5

[28]   I am satisfied that, from the perspective of the current beneficiaries, the retention of the “No survivorship” notation serves no useful purpose. It appears to have been imposed without the request or express agreement of the then registered proprietors. It is an impediment to the efficient administration of the Trust. The current beneficiaries all consent to its removal.

Result

[29]I grant the application.

3      Sell v Registrar-General of Land [2013] NZHC 1219, [2013] 3 NZLR 431 at [37].

4      Re McCullough [2019] NZHC 1999.

5      Re Hosken Family Trust [2020] NZHC 2873 at [10].

[30]   I make the following orders pursuant to ss 132 and 133 of the Land Transfer Act 1952:

(a)I sanction the transfer of the land comprised in titles GS6A/175, GS3C/879 and GS2C/1416 (Gisborne Land Registration District) currently vested in Valentine Takataka Orangi Phares, as surviving trustee of the Tiopira Popata Phares Whānau Trust, to Valentine Takataka Orangi Phares and Tamahae Tare Tiopira Popata Phares, the current trustees of the Tiopira Popata Phares Whānau Trust; and

(b)I direct the Registrar-General of Land to remove the “No survivorship” notations from the land in titles GS6A/175, GS3C/879 and GS2C/1416.

G J van Bohemen J