Hosken Family Trust [2020] NZHC 2873 (3 November 2020)

Last Updated: 25 November 2020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1859 [2020] NZHC 2873

UNDER	Section 133 of the Land Transfer Act 1952 and section 7 and clause 8 to schedule 1 of the Land Transfer Act 2017
IN THE MATTER	of an application to remove “no survivorship” entry from record of title NA 1004/23 (North Auckland)
AND	NIGEL DAVID HOSKEN, JOHN FRANCIS HEARD AND GEOFFREY JOHN THOMPSON AS TRUSTEES OF THE NIGEL HOSKEN FAMILY TRUST Applicants

Hearing:	2 November 2020
Appearances:	SWM Piggin for the Applicant
Judgment:	3 November 2020

JUDGMENT OF MUIR J

This judgment was delivered by me on Tuesday 3 November 2020 at 10.00 am Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:..............................

Counsel/Solicitors: SWM Piggin, Auckland

P A Oliver, Daniel Overton & Goulding, Onehunga

Re Hosken Family Trust [2020] NZHC 2873 [3 November 2020]

Introduction

• [1] The applicants apply by way of originating application under Part 19 for orders:

(a) removing a “no survivorship” entry on the title to the singular property owned by the Trust at 99 Gloria Avenue, Te Atatū; and

(b) vesting the land in the current trustees in circumstances where a former trustee (Mr Richard Stephenson) resigned but then died before a transfer could be executed and where a subsequent trustee (Mr Thompson) has since been appointed.

Background

• [2] The relevant family Trust was formed in 1994. The original trustees were Mr Nigel Hosken, his solicitor Mr John Heard and a friend of Mr Hosken, Mr Richard Stephenson. The settlor was Mr Hosken’s late father. At the time, Mr Hosken was single and had no children.

• [3] The Trust purchased the Te Atatū property in July 1995. At the time the property was acquired a “no survivorship” entry was registered on the Title under s 130 of the Land Transfer Act 1952. Counsel’s advice is that it was the practice of some solicitors at the time to include a “no survivorship” entry when land was held by a family trust.

• [4] The property has an Auckland Council valuation of $1,150,000 and is mortgage free. The registered proprietors are currently Mr Heard (although his middle name, Francis, is not recorded on the title), Mr Hosken and the late Mr Stephenson.

• [5] Mr Stephenson retired as a trustee on 5 November 2001 pursuant to a Deed of Retirement. He died three days later without having executed a transfer to the continuing trustees. Mr Stephenson’s widow advises that no probate or grant of administration was ever obtained in his estate and that she is unwilling to make such an application so many years after her husband’s death.
• [6] By Deed dated 4 September 2003 Mr Hosken appointed an additional replacement trustee (his second cousin) Mr Thompson.

The application

• [7] The application is supported by an affidavit of Mr Hosken, authorities and a draft order. No application for directions is made on the basis:

(a) The final beneficiaries being Mr Hosken and his two children are all adults and consent to the applications.¹

(b) Although s 133 of the Land Transfer Act 1952 requires that where a “no survivorship” notation is included on the title, no transfer can occur without the sanction of the High Court and that before giving its sanction the Court shall, if it seems requisite, cause notice to be given in the Gazette and one newspaper, such notice is not requisite in the current circumstances.

• [8] I am satisfied, in the circumstances indicated, that neither service nor advertising is necessary or requisite. They are accordingly dispensed with.

The “no survivorship” entry

• [9] Under the Land Transfer Act 1952 a transferor could apply for entry of the notation “no survivorship” on the Register.² Trustees registered as joint proprietors could similarly apply.³ The effect of such an entry is set out in s 132 of the 1952 Act:

After any such entry has been made and signed by the Registrar in either case as aforesaid it should not be lawful for any less number of joint proprietors than the number then registered to transfer or otherwise deal with the land, estate, or interest without obtaining the sanction of the High Court.

1. Typically the Trust includes as final beneficiaries any charitable organisation or other person or corporation as determined by the Trustees. The trustees have not made any such determination.

² Land Transfer Act 1952, s 130.

³ Land Transfer Act 1952, s 131.

• [10] The function of the “no survivorship” entry was to alert people dealing with the Land Registry to the fact that the registered proprietors were trustees.⁴ The ability to apply for such a notation has not been carried forward into the Land Transfer Act 2017. As noted in Re McCullough⁵ the vast majority of family trusts function perfectly well without the notation. In the ordinary course, it will not be necessary for the protection of beneficiaries.

• [11] Notwithstanding the “no survivorship” entry, all the normal instances of a joint tenancy apply so that on the death of one of the joint tenants the title accrues to the survivor or survivors in the ordinary way. However, s 132 prevents any registration to give effect to any change of title without the sanction of the Court, including registration of the transmission to surviving joint tenants.⁶

• [12] There is jurisdiction for the notation to be removed by order of this Court.⁷

• [13] Re Brown sets out relevant considerations for removal. They include the number of beneficiaries, whether any such beneficiaries are minors, what consultation has occurred with the beneficiaries and their views generally.⁸

Vesting in the present trustees

• [14] As indicated, although Mr Stephenson had resigned as a trustee at the time of his death he had not executed a transfer of his interest in the Trust property. As also indicated, no grant of probate or administration has ever been obtained in his estate and his widow has no inclination to do so at this point.

• [15] Section 52(1)(e) of the Trustee Act 1956 permits the Court to make vesting orders in respect of land:

(e) where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land, or where it is

⁴ Sell v Registrar-General of Land [2013] NZHC 1219, [2013] 3 NZLR 431 at [37].

⁵ Re McCullough (as trustees in McCullough Family Trust) [2019] NZHC 1999 at [20].

⁶ Hinde, McMorland & Sim Land Law in New Zealand (online ed, LexisNexis) at 13.009.

7. See Re McCullough (as trustees in McCullough Family Trust) [2019] NZHC 1999, Sell v Registrar-General of Land [2013] NZHC 1219; [2013] 3 NZLR 431 and Re Brown [2012] NZHC 2081.
8. Re Brown [2012] NZHC 2081 at [2], referred to in Re McCullough (as trustees in McCullough Family Trust) [2019] NZHC 1999 at [9].

uncertain who is the personal representative of the deceased trustee who was entitled to or possessed of any interest in land.

• [16] At the time of death Mr Stephenson remained registered as a proprietor of the property and was thus, in my view, possessed of sufficient interest in the land for the section to apply, despite his resignation two days earlier as trustee.⁹ Vesting orders are frequently made in circumstances where trustees have been removed for one reason or another (usually disability) but the Register is not in conformity with the Trust position. That encourages a sufficiently purposive interpretation of s 52(1)(e) to permit the vesting application in the present circumstances.¹⁰

Discussion

• [17] All interested parties, including the replacement Trustee Mr Thompson, consent to the applications.¹¹ The consent of Mr Hosken’s children specifically records their receipt of independent legal advice.

• [18] No mortgagee or other interested party is affected.

• [19] None of the prophylactic purposes identified in the former Land Transfer Act provisions are engaged. Similarly, the proposed vesting order is necessary and appropriate for the future conduct of the Trust.

• [20] I note also the appropriateness of correcting the omission of Mr Heard’s middle name as part of the process.

Result

• [21] I make orders;

9. Although the section is not without potential ambiguity I read the words “who was entitled to ...” as referring to “a deceased trustee” and not the “personal representative” who ex hypothesi does not exist.

¹⁰ Greg Garrow & Chris Kelly Law of Trusts and Trustees (7^th ed, LexisNexis, Wellington, 2013) at 18.21(d) records that the provision is directed to cases “Where land is registered in the name of a trustee who is dead and there is no executor or administrator...”.

¹¹ Mr Thompson’s position is confirmed by Mr Hosken, on whose evidence I rely.

(a) that the Registrar-General of Land remove the “no survivorship” entry on the record of title NA 1004/23 (North Auckland) being the land situated at 99 Gloria Avenue, Te Atatū Pensinsula, Auckland (the Land); and

(b) that the land is vested in the applicants Nigel David Hosken, John Francis Heard and Geoffrey John Thompson in substitution for Nigel David Hosken, Richard Stephenson and John Heard; and

• [22] No issue as to costs arises on the application.

Muir J