Toman v Toman HC Wellington CIV-2009-485-765

[2011] NZHC 51

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-765

BETWEEN  ATARETA HANI TOMAN Plaintiff

ANDCARL ROSS TOMAN Defendant

Hearing:         3 February 2011

Counsel:         G A Paine for Applicant

No appearance for Defendant

Judgment:      3 February 2011

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an application for an order that the Registrar of the High Court at

Wellington execute a transfer of the land which is involved in these proceedings.

[2]      The background is that there were defended proceedings heard by me in

August 2009 relating to the ownership of the property.  In a judgment delivered on

11 August 2009,  I held  that  the  plaintiff  was  entitled  to  restitution  of or  to  the declaration of a constructive trust over the property which was then occupied by the defendant, her son, and he was and is the registered proprietor of the relevant land which is a residential property at 93 Fraser Street, Wainuiomata.   I made orders declaring  that  the  defendant  holds  the  legal  interest  in  the  property  upon  a constructive trust for the benefit of the plaintiff and an order directing the defendant to transfer the legal interest in the property to the plaintiff.

[3]      There  were  subsequent  efforts  by  the  plaintiff,  through  her  advisors,  to enforce those orders. An application was made for a possession order and that order was made by Associate Judge Gendall on 6 September 2010.  So possession of the

property has been obtained by the plaintiff.

TOMAN V TOMAN HC WN CIV-2009-485-765 3 February 2011

[4]      What remains outstanding is a transfer of the registered title to the property. Counsel for the plaintiff filed a memorandum seeking an order directing registration of a change of ownership.  I considered the legal routes which might be possible to achieve that end in a minute issued on 5 November 2010.  In that minute I said:

[4]       That possession order has apparently been enforced, so as to achieve possession.    What  remains  outstanding  is  transfer  of  the  title. Counsel for the plaintiff has requested that I “issue a second minute directing that LINZ register a change of ownership for the land at

93 Fraser Street Wainuiomata and being the land and certificate of

title WN887/4”.

[5]       Counsel has not referred to any authority by which the Court may give such a direction to the LINZ.  Section 85 of the Land Transfer Act 1952 is not applicable.  As the Privy Council said in Frazer v Walker, the power conferred by that section does not extend beyond those cases in which adverse claims against the registered proprietor are admitted by that Act.  Section 99 provides that the registrar must give effect to any order made by any Court of competent jurisdiction vesting an estate  or interest under the Act in any person.   That section is limited to vesting orders which the High Court has no inherent power to make.  It cannot assist here.

[6]       Section 81 might arguably provide a basis for jurisdiction.   That confers certain powers on the Registrar General of Land to take action if he is satisfied that any instrument or title is wrongfully retained.   The exercise of those powers is however within the province of the Registrar, and it may be doubtful whether the Court has power to direct the Registrar as to how those powers are to be exercised.   I do not consider it appropriate to adopt such a course here.

[7]       In  my  view,  the  appropriate  mechanism  for  granting  relief  is contained in s 3(1) of the Judicature Amendment Act 1910 which provides:

Execution of instruments by order of the High Court

Where any person neglects or refuses to comply with a judgment or order of [the High Court] or Court of Appeal directing him to execute any conveyance, contract, or other document,  or  to  endorse  any  negotiable  instrument,  [the High Court] may, on such terms and conditions (if any) as may be just, order that such conveyance, contract, or other document   shall   be   executed   or   that   such   negotiable instrument shall be endorsed by such person as [the High Court] may nominate for that purpose; and in such case the conveyance, contract, document, or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it.

[5]      Counsel for the plaintiff has subsequently filed an application in reliance on s 3 of the Judicature Amendment Act 1910.

[6]      That application has not been able to be served personally on the defendant. The defendant was represented by counsel at the original defended hearing before me.   Subsequently I gave a declaration that the previous solicitor, Mr Gill, had ceased to be the solicitor on the record for the defendant but that the address for service  would  be  93 Fraser Street,  Wainuiomata,  the  address  of  the  property. Because of the possession order subsequently made, that is of course no longer the address of the defendant.  Mr Paine has made enquiries of the family.  He has been unable to ascertain the whereabouts of the defendant.   He has ascertained that the family member most likely to have contact with the defendant is a brother who is currently in Rimutaka Prison.   He has taken the step of arranging service on the brother.  Ordinarily it would be desirable that personal service on the defendant be effected.  In the circumstances of this case however, I consider that that step is not necessary in that the defendant was represented when the original order was made. That order directed that the defendant transfer the legal interest in the property to the plaintiff.   All that remains is to ensure that that order is effected.   In those circumstances it would impose unnecessary and undue cost to require that the defendant be located for personal service.

[7]      In terms of s 3 of the Judicature Amendment Act 1910 I am satisfied that the defendant has neglected or refused to comply with the judgment of this Court directing him to execute a transfer of the land.  There will be an order directing that the Registrar of the High Court at Wellington execute a transfer of the land contained in certificate title WN887/4 in the form attached to the application.

[8]      For what it is worth, I award costs on a 2B basis on the present application in favour of the plaintiff.

“A D MacKenzie J”

Solicitors:         Winter Woods, Palmerston North for Plaintiff

(Counsel: G A Paine Barrister, Palmerston North)