The Finance Shop Limited v Estate of Paikea HC Hamilton CIV 2010-419-1442 [2011] NZHC 355 (10 February 2011)

Last Updated: 2 June 2011

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CIV 2010-419-1442}

IN THE MATTER OF THE PROPERTY LAW ACT 2007, SECTION 119

AND IN THE MATTER OF MORTGAGE INSTRUMENT NUMBER 8550796.3 SOUTH AUCKLAND REGISTRY

BETWEEN THE FINANCE SHOP LIMITED Plaintiff

AND ESTATE OF PAULINE PAIKEA Defendant

Hearing: 9 February 2011

On the papers Counsel: JE Gault for plaintiff Judgment: 10 February 2011 10:00:00

JUDGMENT OF ASSOCIATE JUDGE FAIRE

_{[on without notice application for directions as to service]}

_{Solicitors: Frankton Law, PO Box 5232, Hamilton}

THE FINANCE SHOP LTD V ESTATE OF PAIKEA HC HAMILTON CIV 2010-419-1442 10 February 2011

[1] A without notice application for directions as to service of notices desired to be issued under the Property Law Act 2007 was placed before me for consideration.

[2] The application arises because of the following facts.

[3] Pauline Paikea entered into a loan contract with The Finance Shop Ltd on

13 September 2000. In addition, she signed a caveat and a mortgage instrument in favour of The Finance Shop Ltd. The mortgage was given over a property situated at

10 King Street, Ngaruawahia and, more particularly described as “all that land being

1214 square metres more or less Lot 50 Deposited Plan 7762 South Auckland

Registry SA800/133”.

[4] The caveat was registered on 2 March 2001. The mortgage was held by The

Finance Shop Ltd unregistered.

[5] Pauline Paikea died on 11 March 2001.

[6] The inquiries made by the director of The Finance Shop Ltd indicate that no probate or letters of administration have been granted in respect of the estate of the late Pauline Paikea. The director has met with the children of the deceased. He endeavoured to persuade the children to sell the property without success. He advises that the family of the deceased lived in the house for the period and have progressively destroyed it. They no longer live in the house. He estimates that it now represents section value only.

[7] The director of The Finance Shop Ltd has also spoken with the solicitor who acted for the deceased, Mr Graeme Steed. He advises that Mr Steed says that he has been left without instructions and no application has been made to the court to administer the estate.

[8] The loan is currently in default. As at 29 October 2010 the amount outstanding was $27,552.71.

[9] On 23 July 2010 the unregistered mortgage was registered against the certificate of title. The intention of The Finance Shop Ltd is to proceed with a mortgagee sale to recover the amount outstanding under the loan.

[10] The Finance Shop Ltd now seeks directions from the court as to the manner of service.

[11] A notice must be served on the “current mortgagor” before a mortgagee

exercises its powers.[1] The current mortgagor is deceased. The Property Law Act

2007, s 355 applies:

355 Person to or on whom document to be given or served in special cases

...

(3) If the person has died, the document must be given to, or served on, the

administrator of the person’s estate.

[12] The Administration Act 1969, s 22 provides that subject to the provisions of this Act and any other Act, where a person dies without leaving a will that effectively appoints an executor, until administration is granted his or her estate vests in the Crown in the same manner as formerly in England. Subsection (2) requires that notices be served on the Crown in accordance with the Crown Proceedings Act 1950 whilst the estate remains vested in the Crown.

[13] The Crown Proceedings Act 1950 requires service on the Attorney-General by delivering it to the Solicitor-General or by leaving it at the office of the Solicitor- General in Wellington.[2]

[14] The Property Law Act 2007, s 357 provides:

357 Orders dispensing with, or directing manner of, service

(1) In any case referred to in sections 353 to 355,—

(a) a court may, on an application for the purpose, make an order—

(i) dispensing with service; or

(ii) directing that a notice, cross-notice, or other document is to be given or served in a manner other than that provided for in any of those sections or in any instrument; and

(b) if the court makes an order under paragraph (a)(ii), the notice, cross-notice, or other document is adequately given or served if it is given or served in accordance with the order.

(2) This section overrides sections 353 to 355 and all other provisions of this Act, and applies despite anything to the contrary in—

(a) any other enactment; or

(b) any instrument or agreement.

[15] I am satisfied that administration has not been granted. Accordingly, I direct that service of any notice under the Property Law Act 2007 be effected on the Solicitor-General in the manner that I have recorded in paragraph [13] of this judgment together with a copy of the judgment so that the Solicitor-General is aware of the background to this order.

_{[16] I order accordingly.}

JA Faire
Associate Judge

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[1] _{Property Law Act 2007, s 119.}
[2] Crown Proceedings Act 1950, s 16.