RONALD GORDON OKEY v THE PUBLIC TRUSTEE [2015] NZHC 3318

RONALD GORDON OKEY v THE PUBLIC TRUSTEE [2015] NZHC 3318 [18 December 2015]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCIV-2015-454-102[2015] NZHC 3318IN THE MATTER OF an application pursuant to the DeclaratoryJudgments Act 1908BETWEEN RONALD GORDON OKEYFirst PlaintiffMCKENZIE MCPHAIL CORPORATETRUSTEES LIMITEDSecond PlaintiffAND THE PUBLIC TRUSTEEFirst DefendantPAULINE ANNE KINGSBEERSecond DefendantPAULINE ANNE KINGSBEER ANDBERNADETTE PLAWThird DefendantsCIV-2013-454-458UNDER The Property Law Act 2007IN THE MATTER OF sections 316 and 317, application forextinguishment of easement and damagesBETWEEN PAULINE ANNE KINGSBEER ANDBERNADETTE PLAWPlaintiffsAND RONALD GORDON OKEYFirst DefendantMCKENZIE MCPHAIL CORPORATETRUSTEES LIMITEDSecond DefendantHearing: 18 November 2015Counsel: C G O'Connor and P R Strachan for the plaintiffs in proceedingCIV-2013-454-458 and for the second and third defendants inproceeding CIV-2015-454-102P H Surridge and C Robertson for the defendants in proceedingCIV-2013-454-458 and for the plaintiffs in proceeding CIV-2015-454-102G Mason for the first defendant in proceedingCIV-2015-454-102Judgment: 18 December 2015JUDGMENT OF ASSOCIATE JUDGE SMITH[1] The second and third defendants in proceeding CIV-2015-454-102 (theKingsbeer parties) apply to strike out the plaintiffs' claims in that proceeding (whichI will refer to as the declaratory judgment proceeding). In the alternative, they ask for an order consolidating the declaratory judgment proceeding with proceeding CIV-2013-454-458, a proceeding commenced by them in December 2013 which I will refer to as the right of way proceeding.[2] The first defendant in the declaratory judgment proceeding (the PublicTrustee) also applies to strike out the plaintiffs' claims in that proceeding. In thealternative, the Public Trustee asks for summary judgment.[3] The strike-out, summary judgment and consolidation applications were first called in this Court in Palmerston North on 30 October 2015. The Kingsbeer parties were ready to proceed with their strike-out and consolidation applications that day (no notice of opposition had been filed by the plaintiffs in the declaratory judgment proceeding), but Mr Surridge sought an adjournment on the basis that he had notunderstood that the Kingsbeer parties' applications were to be heard that day. Iadjourned the applications of both the Public Trustee and the Kingsbeer parties to 18 November 2015 for a defended hearing, and gave appropriate directions for the filing of further affidavits and written submissions. I also ordered the plaintiffs in the declaratory judgment proceeding (who I will refer to hereafter as the Okey parties) to pay costs of $1,200 to the Kingsbeer parties, on the basis that the Okey parties had failed to file any notice of opposition and the Kingsbeer parties, whowere ready to proceed, would incur additional costs if the hearing of their applications was adjourned.[4] By memorandum dated 3 November 2015 counsel for the Okey parties asks me to recall that costs judgment, substantially on the basis that the Okey parties had received no (or no sufficient) notice that the Kingsbeer parties' applications would ormight proceed on 30 October 2015.Background[5] Ms Pauline Kingsbeer and Ms Bernadette Plaw are the trustees of a trust known as the PAK trust (the Trust). The Trust is the owner of a rural property situated at Cessna Road, Palmerston North, which I will refer to as the Trust land.[6] The Trust land was owned by the late Mr Don Kingsbeer until his death on 18 January 2012. Ms Pauline Kingsbeer is Mr Don Kingsbeer's daughter, and she isthe sole beneficiary under his last will.[7] Following the late Mr Kingsbeer's death, the Trust land was transmitted tohis executor and trustee, the Public Trustee, and the Public Trustee conveyed theTrust land to Ms Pauline Kingsbeer in accordance with the terms of the deceased'swill. Ms Pauline Kingsbeer subsequently transferred the Trust land to the Trust.[8] The Okey parties are the owners of an industrial property which has a common boundary with the Trust land. For convenience, I will refer to it as the Okey land.[9] The Okey parties say that they purchased the Okey land from the late Mr Kingsbeer in the early 1980s, and that over the ensuing years an informal arrangement existed between them under which a private road on the Trust land was used to provide vehicular access to the Okey land. Approximately 22 years ago the private road was sealed with an asphalt concrete surface, to replace the previously unsealed metal surface. The Okey parties and Mr Kingsbeer shared the cost of the maintenance of the private road equally.[10] There is direct legal access from the Okey land to Cessna Road (a public road), but the Okey parties say that there is no practical access.[11] The late Mr Kingsbeer and Mr Okey "formalised" their agreement for the Okey parties' use of the private road on the Trust land, by means of two short agreements signed on 13 July 2009 and 1 August 2009. The first of those agreements provided:I Don Harold Kingsbeer acknowledge that I am the registered proprietor of[the Trust land]in consideration of the sum of $1 paid to me by [the Okey parties] I hereby agree to grant [the Okey parties] a Right of Way easement over [the private road on the Trust land].[12] The agreement signed on 1 August 2009 provided for the Okey parties to reimburse the late Mr Kingsbeer for a proportion of rates paid by him to the Palmerston North City Council (the Council) in respect of the jointly used common roadway on the Trust land. The agreement went on to record that the costs of services (water, stormwater, sewerage, telephone and roadway maintenance etc) were to be shared equally by the parties. The term of the agreement was to be in perpetuity or until both parties agreed on new terms.[13] After Mr Don Kingsbeer's death (and possibly before then), difficulties arose over the Okey parties' alleged use of the common roadway on the Trust land. The Kingsbeer parties contend that the Okey parties, or their employees or contractors or tenants, have been using the road to drive heavy industrial traffic on it, causing significant damage to the road.[14] The Okey parties have attempted to have the right of way over the Trust land formally registered on the titles to the Trust land and the Okey land. However there are issues over whether the road has the capacity to bear its current and intended use. Engineers became involved, and it appears that there will be substantial expense in getting the road up to the standard where the Council will approve the formal grant of a right of way.11 It appears that the road had never been professionally engineered or designed.[15] The Okey parties have carried out some work patching portions of the road, but the repairs have not been sufficient to get the road up to a standard capable of achieving Council consent to registration of the easement. A quote for the necessary remedial work that the Kingsbeer parties obtained in November 2013 put the estimated repair figure at $108,117.[16] The Kingsbeer parties have taken the view that, because it was the Okey parties who wanted to register the easement and it was their use of the road which was allegedly causing its degradation, the Okey parties should meet all costs of bringing the roadway up to Council's standards. The Kingsbeer parties say that theyput that position in writing to the Okey parties in August 2012, but the Okey parties have failed to address the issues.[17] On 8 February 2013 the Kingsbeer parties' solicitors sent a letter to the Okey parties giving notice of cancellation of the grant of easement incorporated in the 13 July 2009 agreement signed by the late Mr Kingsbeer and Mr Okey. The letter stated that the easement cancellation would be effective from 1 March 2013.[18] The Okey parties continued to use the road on the Trust land, and they have registered a caveat against the Trust land to protect their interests under the 2009 easement agreements.[19] When the dispute over the parties' respective responsibilities for the repair and maintenance of the right of way had not been resolved by December 2013, the Kingsbeer parties issued the right of way proceeding. In it, they seek orders under s 317 of the Property Law Act 2007 (the PLA) extinguishing the equitable easement granting the right of way to the Okey parties, on the ground that there has been a change to the Trust land since the right of way was created, in that the Trust land has been degraded beyond fair wear and tear because of the continued heavy industrial traffic. They say that the proposed extinguishment of the easement would not harm the Okey parties, as there is alternative access to the Okey land if the Okey parties wish to use it.[20] The Kingsbeer parties contend in the right of way proceeding that the Okey parties should reinstate the private road, or pay the costs of reinstating it, to the condition it was in before they started using it.[21] In an alternative cause of action in the right of way proceeding, the Kingsbeer parties ask for certain orders in the event that the easement is not extinguished. The orders sought include an order that the Okey parties pay the costs to bring the road up to a standard acceptable to the Council, and that the Okey parties pay the continuing repair and maintenance costs associated with their use of the road. The Kingsbeer parties also seek an order for monetary compensation for lack of amenity and distress caused by the damage to the road.[22] The Okey parties filed a statement of defence in the Right of way proceeding on 3 March 2015. They deny liability, and ask the Court to make such orders as may be necessary to enable them to continue to have a right of way over the road and the use of the services.[23] The right of way proceeding has since been the subject of a number of management conferences, the first of which was convened on 27 May 2014. A judicial settlement conference was scheduled for 22 August 2014, but it was cancelled when the Okey parties were not ready to proceed. On 1 September 2014 I gave directions for the allocation of a three day fixture for the trial, and for the exchange of briefs of evidence, completion of a common bundle of documents, filingof the Kingsbeer parties' chronology, and the filing of opening submissions.[24] The registrar had advised the parties on 28 July 2015 that time might be available to hear the right of way proceeding in the week beginning 19 October 2015. Counsel were asked to advise their availability for that week. While the Kingsbeer parties advised they were ready to proceed, counsel for the Okey parties advised that in their view the matter was not ready for hearing. Counsel considered that there would be a need for further interlocutory proceedings which might render the right of way proceeding superfluous, at least for the time being.[25] A teleconference was convened on 21 August 2015 to address those matters. By then, the available October fixture time had been allocated to another matter.[26] At the 21 August 2015 conference, Mr Robertson advised that the Okey parties were considering adding an additional defence, and/or commencing a separate proceeding against the Public Trustee as executor of the estate of the late Mr Kingsbeer.[27] At the 21 August 2015 conference, I directed that any application the Okey parties might wish to make to adjourn or defer the trial of the right of way proceeding, and any other interlocutory applications the Okey parties might wish to make (including any application for leave to amend their statement of defence after the close of pleadings date), were to be filed and served not later than 7 September 2015. I directed that any such applications by the Okey parties would be heard at 10am on 30 October 2015.[28] The Okey parties did not make any application to add additional defences in the right of way proceeding. Instead, on 10 September 2015 they filed the declaratory judgment proceeding. The Kingsbeer parties then filed their strike-outand/or consolidation application. The Public Trustee's strike-out/summary judgment application was filed shortly before the 30 October 2015 hearing.[29] A notice of opposition to both applications has now been filed by the Okey parties, and affidavits have been filed by Mr Okey (in opposition) and by Ms Tamara Moore and Mr Bruce Manning (in support of the Public Trustee'sapplication).[30] At the hearing, Mr Surridge and Mr Robertson submitted an amended statement of claim in the declaratory judgment proceeding. It is this amended pleading which is now the subject of the strike-out and summary judgment applications.The amended statement of claim in the declaratory judgment proceeding[31] The first cause of action is solely against the Public Trustee. The Okey parties refer to the two agreements made in 2009 between the late Mr Kingsbeer andMr Okey, and to Mr Kingsbeer's subsequent death and the appointment of the Public Trustee as his executor. They say that there is no dispute that the Okey parties had an equitable interest in the Trust land.[32] The Okey parties then allege that the Public Trustee had notice of their equitable interest in the Trust land as early as 14 March 2012, when Ms Pauline Kingsbeer advised the Public Trustee by email that payments were being made to her late father by Mr Okey for "his share of the expenses in regards to using the driveway to access his property."[33] The Okey parties then say that when (on 7 May 2012) the Public Trustee conveyed the legal title to the Trust land from the late Mr Kingsbeer to itself as executor, Ms Tamara Moore, an officer employed by the Public Trustee, wrongly stated in the prescribed form of statutory declaration that the Trust land was free from all trusts and equities. The Okey parties contend that the Public Trustee knewor ought to have known that that statement was false. They then plead that "thepurported transmission was defective."[34] In their claim for relief on their first cause of action, the Okey parties ask for a declaration that the transmission from the deceased to the Public Trustee was defective. They also ask for such other order as the Court may deem just, an unspecified amount for damages, and costs.[35] The Okey parties' second cause of action is solely againstMs Pauline Kingsbeer. In this cause of action, the Okey parties allege that Ms Kingsbeer knew of the easement that the Okey parties enjoyed, and recognised it. She proposed to the Okey parties that they should meet the full costs of repairing the road, and that if they did, she would consent to the formal grant of an easement to them. The pleading goes on to refer to the later revocation of this offer and purported cancellation of the easement with effect from 1 March 2013. The claim for relief against Ms Kingsbeer seeks a declaration that the Trust land is subject tothe right of way in favour of the Okey parties, such other order as the Court deems just, unspecified damages, and costs.[36] The third cause of action is solely against the Trust. It refers to the transfer of the Trust land from Ms Kingsbeer to the Trust on 7 December 2012, and to MsKingsbeer's acknowledgement that the Trust land is subject to the right of way. Thepleading then refers to the Trust's purported cancellation of the easement. The reliefsought against the Trust is a declaration that the Trust land is subject to the right of way in favour of the Okey parties, such other order as the Court deems just, and costs.The applications for strike-out and/or summary judgment, and the Okeyparties' notice of opposition[37] In their consolidation and/or strike-out application, the Kingsbeer parties contend that the declaratory judgment proceeding discloses no cause of action, in that there is no wrong to remedy. They say that the declaratory judgment proceeding is calculated to cause them delay in the prosecution of the right of way proceeding, and that it is frivolous, vexatious, and an abuse of the process of the Court. In support of their consolidation application, they say that it would be unjust for the two proceedings to be tried separately, as the same parties are involved in both proceedings. They contend that the declaratory judgment proceeding relates to matters that are already before the Court in the right of way proceeding, and it would be more appropriate and convenient for the two proceedings to be heard together.[38] The Public Trustee says that the statement of claim does not disclose any reasonably arguable cause of action against the Public Trustee, and it has no prospect of success. The application states that the Public Trustee had no notice of the written agreement between the late Mr Kingsbeer and the Okey parties, but even if thePublic Trustee had known of the Okey parties' equitable easement that would nothave made the transmission or the transfer to Ms Kingsbeer invalid. The PublicTrustee further contends that no issue of fraud or defeasibility of the Trust's title canarise, as all parties now acknowledge the Okey parties' equitable rights. Finally, thedeclaration sought is said to be inappropriate in circumstances where the Public Trustee has no interest in the Trust land.[39] In their notice of opposition, the Okey parties contend that the declaratory judgment proceeding relates to matters that are outside the ambit of the right of way proceeding. They say that the Court hearing the declaratory judgment proceeding must first determine issues relating to defeasibility and standing, before the Court can properly consider the issues in the right of way proceeding. Secondly, the Okey parties say that the declaratory judgment proceeding discloses a very important cause of action that identifies a material error by the Public Trustee, which has a direct bearing on defeasibility of title and thus on the right of way proceeding. They deny that the declaratory judgment proceeding is in any way frivolous or vexatious, or an abuse of process.[40] In respect of the Kingsbeer parties' application for an order that the two proceedings be consolidated, the Okey parties deny that it would be unjust for the two proceedings to continue separately. However, Mr Surridge accepted at the hearing that the two proceedings should be heard consecutively before the same Judge.Strike-out application and defendants' applications for summary judgment –legal principles[41] In my recent judgment in Cantara Ltd & Cantara Farms Ltd v Bank of New Zealand, I summarised the principles applicable to defendants' summary judgment applications in the following terms:2The Court may enter summary judgment against a plaintiff if the defendantsatisfies the Court that none of the causes of action in the plaintiff'sstatement of claim can succeed.The decision of the Court of Appeal in Westpac Banking Corporation v M M Kembla New Zealand Limited is authority for the following propositions:3(i) A defendant applying for summary judgment has the onus of proving the plaintiff cannot succeed. Usually, summary judgment for a defendant will arise where the defendant canoffer evidence which is a complete defence to the plaintiff'sclaim.2 Cantara Ltd & Cantara Farms v Bank of New Zealand [2015] NZHC 2775 at [33]-[34].3 Westpac Banking Corporation v M M Kembla New Zealand Limited [2001] 2 NZLR 298, (2000) 14 PRNZ 631 (CA), at [61]-[64].(ii) The Court must be satisfied that none of the claims can succeed: it is not enough that they are shown to have weaknesses.(iii) Summary judgment will only be suitable where all the material facts are not in dispute and can be put before the Court efficiently in affidavit form.(iv) The procedure may be inappropriate if the case is likely to turn on a judgment which can only be reached properly after hearing all the evidence at trial.(v) Developing points of law may require the added context and perspective provided by a full trial.[42] In Cantara, I followed the decision of the Supreme Court in Couch v Attorney-General4 in stating the following principles applicable to a defendant'sstrike-out application:5(i) Pleaded facts, whether or not admitted, are assumed to be true.(ii) The cause of action must be clearly untenable: the Court must be certain that it cannot succeed.(iii) The jurisdiction is to be exercised sparingly and only in clear cases.(iv) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.(v) The Court should be particularly slow to strike out a claim in a developing area of law.In an appropriate case, a Court dealing with a defendant's strike-out application may receive affidavit evidence, but it will not attempt to resolve genuinely disputed issues of fact. Generally, affidavit evidence admitted on a strike-out application will be limited to matter which is undisputed.The issues to be determined[43] The following issues fall to be determined:(a) Does the Public Trustee clearly have a complete defence to the Okeyparties' claims in the declaratory judgment proceeding? If not, should4 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] citing Attorney-General v Prince [1998] 1 NZLR 262 (CA).5 Cantara Ltd & Cantara Farms v Bank of New Zealand, above n 1, at [36], referring to Attorney- General v McVeagh [1995] 1 NZLR 558 (CA) at 566.the claims against Public Trustee be struck out on the basis that (as presently pleaded) the amended statement of claim does not disclose any tenable cause of action?(b) Should the Okey parties' claims in the declaratory judgmentproceeding against (a) Ms Kingsbeer and (b) the Trust be struck out on the grounds that the amended statement of claim does not disclose any tenable cause of action against them?(c) Should the declaratory judgment proceeding and the right of way proceeding be consolidated, and if so on what terms?(d) Should the judgment for costs made on 30 October 2015 be recalled?Issue 1: Does the Public Trustee clearly have a complete defence to the Okeyparties' claims in the declaratory judgment proceeding? If not, should the claims against the Public Trustee be struck out on the basis that (as presently pleaded) the amended statement of claim does not disclose any tenable cause of action?Transmission and transfer – the legal position[44] The obligations of an executor administering an estate and transferring real property to a beneficiary are covered by particular provisions of the Administration Act 1969 and the Land Transfer Act 1952 (the LTA).[45] Section 24 of the Administration Act sets out how an executor holds thedeceased's property:24 Estate to vest in administrator(1) Immediately upon the grant of administration of the estate of any deceased person, all the estate then unadministered of that person, whether held by him or her beneficially or held by him or her in trust, shall vest in the administrator to whom the administration is granted for all the estate therein of that person:provided that nothing in this section shall affect the earlier vesting in an executor by operation of law.(2) The title of every administrator to any part of the estate of a deceased person, whether he or she has died before or after the commencement of this Act, shall relate back to and be deemed to have arisen immediately upon the death of the deceased person, as if there had been no interval of time between the death and the grant of administration.[46] Under s 25(a) of the Administration Act, an administrator6 holds the estate ofthe deceased according to the trusts and dispositions of the deceased's will.[47] A transmission is defined to mean "the acquirement of title to an estate orinterest by operation of law".7 Under s 122(1) of the LTA, any person claiming to be entitled to any estate or interest under the LTA by virtue of any transmission may make application in writing to the Registrar to have the transmission registered.[48] Sections 122(2) and 123 of the LTA then provide:122 Person claiming under transmission may apply to have same registered(2) Every such application shall accurately define the estate or interest claimed by the applicant, and shall state, so far as is within the knowledge of the applicant, the nature of every estate or interest held by any other person at law or in equity affecting the same, and that he verily believes himself to be entitled to the estate or interest in respect of which he applies to be registered as proprietor; and the statements in the application shall be verified by the oath or statutory declaration of the applicant.123 Procedure on application for transmission(1) If on any such application and upon the evidence adduced in support thereof it appears to the Registrar that the applicant is entitled to the estate or interest claimed, the Registrar shall register the applicant as proprietor thereof.(2) The person so registered as proprietor shall hold the estate or interest transmitted subject to all equities affecting the same, but for the purpose of any dealing therewith shall be deemed to be the absolute proprietor thereof.6 Under s 2(1) of the Administration Act, an "administrator" means any person to whomadministration is granted, and thus includes an executor of a will to whom probate has been granted by the Court.7 Land Transfer Act, s 2.[49] A key difference between a transmission and most transfers of real estate, which is highlighted by s 123(2), is that whereas a bona fide purchaser of land who acquires the land without fraud gets an indefeasible title, free of any unregistered prior interests,8 an administrator acquiring the land pursuant to a transmission acquires the land subject to any prior equitable interests. Even a registered caveat, which would prevent the registration of a transfer, does not prevent the registration of a transmission.9[50] In general terms, a beneficiary under a will has the right to have the devised property duly conveyed to him or her.10 This is normally effected by the registration of a transfer from the administrator to the beneficiary.[51] There is nothing in the LTA that expressly states that a beneficiary under a will, who has provided no consideration for a piece of land devised to him or her, is entitled to an indefeasible title to that land. Whether a beneficiary is entitled to an indefeasible title has historically been the subject of much debate. However counsel accepted for the purposes of the applications before the Court that that debate may be regarded as having been resolved in New Zealand by the Supreme Court in Regal Castings Ltd v Lightbody, and in particular by the judgment of Tipping J in that case.11 Tipping J held that a registered proprietor of land under the LTA who obtained the registration without fraud obtained an indefeasible title, whether he or she had given full value or was a volunteer.12Submissions on issue (1)The Public Trustee[52] The Public Trustee makes the same submissions on both the strike-out and summary judgment applications.[53] At the hearing, Mr Mason identified the following four sub-issues:8 Land Transfer Act, s 182.9 Land Transfer Act, s 141(5)(a).10 Saunders v Vautier (1841) 49 ER 282.11 Regal Castings Ltd v Lightbody [2008] NZSC 87, [2009] 2 NZLR 433.12 At [135].(a) Was the transmission to the Public Trustee defective?(b) Is there an arguable basis for making the declaration which the Okey parties seek (a declaration that the transmission to the Public Trustee was defective)?(c) Did the transfer from the Public Trustee to Ms Kingsbeer extinguish the unregistered interests of the Okey parties?(d) Did the Public Trustee as executor have a duty to procure the extinguishment of any unregistered interests in the land prior to conveying it to Ms Kingsbeer?[54] For the Public Trustee, Mr Mason submits on the first and second of those issues that the transmission was not defective. While the form Ms Moore filled in stated that there were no equities affecting the land, the effect of s 123(2) of the LTA is that the person who receives a transmission of land takes the land subject toequitable interests. Ms Moore did not know of the Okey parties' unregisteredinterest, and Mr Mason submits that she filled out the form in a way that was accurate to the best of her knowledge, in accordance with s 122 of the LTA. He submits that the situation which has arisen is one for which the law provides – in essence, s 123(2) trumps any deficiencies in the form filled in by Ms Moore.[55] Mr Mason further submits that the Okey parties' attack on the transmission ismeaningless, as title has already been transferred. A declaratory judgment against the Public Trustee would not affect the current rights at play – that is, the rights as between a person with a registered title and a person with an unregistered equitable interest. In order to properly attack the transmission, Mr Mason submits there would have to be some kind of order getting title back to the Public Trustee.[56] On the third sub-issue, Mr Mason submits that the transfer to Ms Kingsbeerdid not extinguish the Okeys parties' interest. Mr Mason accepts that a volunteersuch as Ms Kingsbeer might have obtained an indefeasible title from the executor,1313 In accordance with the views expressed by Tipping J in Regal Castings Ltd, above n 11.and that, absent fraud, the conferring of an indefeasible title on her would have had the effect of extinguishing the unregistered interest of the Okey parties. However, he submits that there has been 'supervening fraud' in the circumstances of this case, inthat Ms Kingsbeer knew of the interest and acknowledged it. As such, the unregistered interest survived the transfers, in equity.[57] On the fourth sub-issue, Mr Mason submits that the Public Trustee owed no duty as an executor to extinguish an unregistered interest before distributing the estate. The only duty the Public Trustee owed was to state any interests to the Land Registrar of which the Public Trustee was aware. And even if the Public Trustee knew of an unregistered interest, it would still be under a duty under s 25 of Administration Act to administer the will.[58] Generally, Mr Mason submits that the Okey parties' arguments are technicaland, in practical terms, pointless: the Kingsbeer parties acknowledge the Okeyparties' unregistered interest.[59] This is essentially the basis on which Mr Mason submits that summary judgment should be entered for the Public Trustee. He submits that there is no genuine purpose to the declaratory judgment proceeding: it seeks acknowledgement of what the Kingsbeer parties already acknowledge.The Okey parties[60] For the Okey parties, Mr Surridge submitted in his written submissions that it is arguable that Ms Pauline Kingsbeer did get an indefeasible title, so that the Okey parties have been deprived of their rights. At the hearing, Mr Surridge placed emphasis on the argument that the Public Trustee should have held the property andnot distributed it until matters relating to the Okey parties' unregistered interest hadbeen resolved. The Public Trustee knew, or ought to have known, of the equitable easement.[61] Mr Surridge further submits that the agreements reached between Messrs Okey and Kingsbeer in July 2009 amounted to a positive covenant, which runs with the land. Under ss 303 and 304 of the PLA, such covenants are binding onsuccessors in title and administrators.14 Mr Surridge refers to what he describes as atension between the Public Trustee's duty to distribute the estate, and the Public Trustee's duty to fulfil the obligations imposed by the alleged positive covenant.[62] Mr Surridge submits that remedying the unregistered easement issue was anobligation of the Public Trustee as executor, coming within the executor's generalduty to pay the debts of the deceased. He refers to the remedying of the unregisteredissue as a kind of "circumstantial debt", that the legislature would have had in mind when drafting the legislative provisions which prescribe an executor's obligations.Discussion and conclusions[63] I accept Mr Mason's submission that the relevant questions to be resolvedunder this issue are the sub-issues set out at para [53] of this judgment.14 Section 303 of the PLA relevantly provides:303 Legal effect of covenants running with land(1) This section applies to a restrictive covenant, and also to a positive covenant whether expressed in an instrument or implied by this Act or any other enactment in an instrument, if—(a) the covenant burdens land of the covenantor and is intended to benefit theowner for the time being of the covenantee's land; and(b) there is no privity of estate between the covenantor and the covenantee.(2) Every covenant to which this section applies, unless a contrary intention appears, is binding in equity on—(a) every person who becomes the owner of the burdened land (whether byacquisition from the covenantor or from any of the covenantor's successorsin title, and whether or not for valuable consideration, and whether by operation of law or otherwise); and(b) every person who is for the time being the occupier of the burdened land.(3) Every covenant to which this section applies, unless a contrary intention appears, ceases to be binding on a person referred to in subsection (2) when that person ceases to be the owner or the occupier of the burdened land but without prejudice tothat person's liability for any breach of the covenant arising before that personceased to be the owner or occupier of the land.[64] It will be convenient to deal with the first two sub-issues together.[65] I accept Mr Mason's submissions on them. The declaration may have beenwrong in stating that the Trust land was free from all equities, but the effect of s 123(2) of the LTA is clear: after registration of the transmission, the Public Trusteestill held the Trust land subject to existing equities, including the Okey parties'unregistered easement. There is nothing to suggest that the incorrect declaration prevented s 123(2) from operating.[66] In those circumstances, I see no possible utility in a declaration that thetransmission was "defective".15 If it was, the defects have had no adverse effects onanyone's rights. That being the case, there is in my judgment no prospect of the Court making the declaration sought if the case were to be allowed to proceed to trial.[67] On the third sub-issue, I again accept Mr Mason's submission that thetransfer to Ms Kingsbeer did not extinguish the Okey parties' interest. While MsKingsbeer and the Trust were volunteers who (absent fraud on their part) would normally have obtained an indefeasible title to the Trust land, they clearly knew ofand, importantly, acknowledged the Okey parties' interest in the land, and they continue to do so. There is simply no dispute between the parties that the Okey parties continue to enjoy the equitable interest in the Trust land which was created by the agreements described in paras [11] and [12] of this judgment, as Mr O'Connormade clear at the hearing.[68] The transfer from Ms Kingsbeer to the Trust occurred in December 2012, andthe Trust clearly acknowledged the continuing existence of the Okey parties'unregistered equitable interest in the Trust land when the Trust's solicitors wrotepurporting to cancel the easements on 8 February 2013. While the Trust now resilesfrom that position, and accepts that the Okey parties' interests were not then validly15 Under s 10 of the Declaratory Judgments Act 1908, the jurisdiction to give or make a declaratory judgment or order is discretionary. In Electoral Commission v Tate [1999] 3 NZLR 174, the Court of Appeal stated that one reason to decline to enter a declaratory judgment is if it would have no utility, at [30].cancelled, the important point for present purposes is that both the Trust and theOkey parties acknowledged the continuing existence of the Okey parties'unregistered interest long after the Public Trustee took any relevant step or made any relevant omission. In short, nothing done by the Public Trustee, and nothing it may have omitted to do, has cause the Okey parties any loss.[69] On the fourth sub-issue (the Public Trustee's alleged duty to sort out anydisputes relating to the easement before it conveyed the Trust land to Ms Kingsbeer), the continued acknowledgement by the Kingsbeer parties of the Okey parties'interest again provides a complete answer. It is unnecessary to fully address the legal arguments about the nature of positive covenants, and the interplay between covenants and the duties of an executor. I do note, however, that if the agreements made by Mr Kingsbeer and Mr Okey in 2009 did constitute covenants for the purposes of ss 303 and 304 of the PLA, their effect was only to bind in equity those who would become owners or occupiers of the land,16 and the Kingsbeer parties already acknowledge that (subject to the outcome of the right of way proceeding) they are bound in equity by the agreements. Recourse to s 303 therefore cannotimprove the Okey parties' position. Further, the covenant (if that is what it was) would have ceased to bind the Public Trustee when the Public Trustee ceased to be the owner or occupier of the Trust land.17 Section 304 of the PLA does not take the position any further – it provides only that the administrator of the estate of adeceased person who was bound at the time of that person's death by a positivecovenant to which s 303 applies, is also bound by the covenant, to the extent that the administrator has estate assets in his or her hands which are sufficient to meet the obligations under the covenant. There is no allegation that the Public Trustee failed to make any payments due under the 2009 agreements during the brief period before the Trust land was conveyed to Ms Kingsbeer and the covenant was no longer binding on the Public Trustee.[70] The general obligation under the will to pay the deceased's debts did not inmy view create any obligation owed to the Okey parties by the Public Trustee to refrain from conveying the Trust land to Ms Kingsbeer, particularly in circumstances16 Property Law Act 2007, s 303(2).17 Section 303(3).where she was aware of and acknowledged the Okey parties' interest. If the Okeyparties wished to resolve matters with the Public Trustee, as opposed to the beneficiaries who would inherit the land, it was for them to lodge a caveat on the title to the Trust land, or to register notice of the claimed positive covenant under s 307 of the PLA. They did neither of those things.[71] Mr Surridge referred in his submissions to s 34 of the Administration Act, which is concerned with the situation of estate property which is charged with the payment of money, whether by mortgage, charge or otherwise. That section can have no relevance, as there is nothing to suggest that any money payable by Mr Kingsbeer under the 2009 agreements was secured over the Trust land.[72] In the end, it appears that the Okey parties are seeking to put right a wrong allegedly done to them (being deprived of their equitable easement by the registration of the transfer from the Public Trustee to Ms Kingsbeer) by seeking to unwind the various transactions going back to the allegedly defective transmission. It is neither necessary or appropriate to do that in circumstances where they have clearly not been deprived of the equitable easement – on any view of it, the Kingsbeer parties have acknowledged and continue to acknowledge the existence ofthe Okey parties' interest under the 2009 agreements, subject to any orders the Courtmight make in the right of way proceeding.[73] In summary, I am of the view that the Okey parties' claims against the Public Trustee in the declaratory judgment proceeding are fully answered by the simple factof the Kingsbeer parties' acknowledgment of the Okey parties' interest in the Trustland.[74] I conclude that there is no possible basis on which the claims against the Public Trustee can succeed. That position cannot be improved by allowing access tothe Public Trustee's documents by way of a discovery order, or by any otherinterlocutory process of the Court. There is simply no utility in the making of the declaration sought, and no basis on which the Okey parties can say that anything done or omitted by the Public Trustee has caused them loss.[75] In those circumstances the appropriate order is an order for summaryjudgment for the Public Trustee on the Okey parties' claims.Issue 2: should the Okey parties' claims in the declaratory judgment proceedingagainst (a) Ms Kingsbeer and (b) the Trust be struck out on the grounds that the statement of claim does not disclose any tenable cause of action?[76] The amended statement of claim seeks declarations against Ms Kingsbeerand the Trust that Trust land is subject to the right of way in favour of Mr Okey, "any other order that the Court deems just", and costs. There is also a claim forunspecified damages against Ms Kingsbeer.Submissions on issue (2)The Kingsbeer parties[77] At the hearing, Mr O'Connor for the Kingsbeer parties endorsed Mr Mason'ssubmissions outlined above. He explicitly accepted that Ms Pauline Kingsbeer and the Trust had the requisite knowledge of the Okey parties' interest, such that she, andthen the Trust, took title subject to that equitable interest.[78] Mr O'Connor further submits that the application for a declaratory judgmentcannot assist the Okey parties – the problems that gave rise to the right of way proceeding would exist regardless of who owns the Trust land, and there is no dispute that the Trust land is presently subject to the equitable rights in favour of the Okey parties which were created by the two agreements made in 2009. And even if the Okey parties could attack the transmission and the transfers, and title somehow reverted back to the late Mr Kingsbeer, the Public Trustee would still be bound to register a transmission, and would still hold the Trust land on trust for Ms Kingsbeer as sole beneficiary under the deceased's will.The Okey parties[79] The submissions made for the Okey parties were substantially the same as their submissions made on the Public Trustee application.Decision[80] For essentially the same reasons I have given for entering summary judgment for the Public Trustee, I am of the view that it is not arguable on the claims as they have been pleaded and argued that the transmission was ineffective to convey good title to the Public Trustee, or that the subsequent transfers to Ms Kingsbeer and theTrust, subject to the Okey parties' acknowledged equitable interests, were invalid.[81] The Kingsbeer parties do not dispute the continued existence of the equitable easement, and in those circumstances the amended statement of claim fails to identify any need for the declaration sought, or any loss arising from the matters pleaded which could be the subject of any claim for damages against the Kingsbeer parties. I think those factors are sufficient for those causes of action to be described as frivolous in the sense argued: there is simply no need for the declaration, and no apparent basis for the making of any other orders.[82] These two causes of action will be struck out.Issue 3: should the declaratory judgment proceeding and the right of way proceeding be consolidated, and if so on what terms?[83] As I have granted summary judgment on the Public Trustee's application andstruck out the claims against Ms Kingsbeer and the Trust, there is presently no need for any consolidation order. The application for consolidation is adjourned, to bebrought on if necessary by the Kingsbeer parties on giving 14 days' notice (whichmay be given by memorandum).Issue 4: should the judgment for costs made on 30 October 2015 be recalled?[84] In the view to which I have come on the summary judgment and strike-out applications, there is no need to consider the recall application. The Okey partieswere sufficiently served with the Kingsbeer parties' strike-out and consolidation applications on or about 25 September 2015, and counsel confirmed at the hearing on 30 October 2015 that the copy of that application did show a hearing date of30 October 2015. Any notice of opposition should have been filed within 10 working days of 25 September 2015,18 namely by 8 October 2015. No notice of opposition was in fact filed before the applications were called on 30 October 2015. Instead, Mr Surridge appeared on that date and sought an adjournment of the proceedings.[85] I accept that there may have been a misapprehension on Mr Surridge's part asto what was to be heard on 30 October 2015, and that no formal notification of that hearing date appears to have been notified to him by the Court registry staff.[86] In the circumstances, I think the justice of the case will be met if I allow the costs order made on 30 October 2015 to stand, on the basis that the Kingsbeer parties will be awarded costs on their strike-out application on a 2B basis, including for the appearance on 30 October 2015, but with the total 2B calculation on that basis reduced by the $1,200 costs award made on 30 October 2015. I think an award onthat basis will sufficiently reflect the Okey parties' failure to file their notice ofopposition in time, and the fact that a hearing did take place at which they sought and were granted an extension of time to file their notice of opposition.Orders[87] I make the following orders:(a) I enter summary judgment for the Public Trustee in proceeding CIV-2015-454-102, with costs to the Public Trustee on a 2B basis and disbursements as fixed by the registrar. (For the avoidance of anydoubt, those costs are to include Mr Mason's appearance on 30October 2015).(b) The Okey parties' claims against the Kingsbeer parties (the secondand third defendants in proceeding CIV-2015-454-102) are struck out, with costs to the Kingsbeer parties (one set of costs only) on their strike-out application on a 2B basis, including in respect of the18 High Court Rules, r 7.24(1).appearance on 30 October 2015, but with the total so calculated reduced by $1,200 (being the amount of the costs award made against the Okey parties on 30 October 2015). There will also be an order that the Okey parties pay the Kingsbeer parties their disbursements on the strike-out application, as fixed by the registrar.(c) The Kingsbeer parties' application for consolidation of the twoproceedings is adjourned, to be brought on if necessary on 14 days'notice (which notice may be given by memorandum).(d) The Okey parties' application for recall of the costs order madeagainst them on 30 October 2015 is dismissed.Associate Judge SmithSolicitors:Strachan O'Connor, Upper Hutt for the plaintiff CIV-2013-454-458 and for the second and third defendants in proceeding CIV-2015-454-102Mana Law, Wellington for the defendants in proceeding CIV-2013-454-458 and for the plaintiffs in proceeding CIV-2015-454-102Public Trust, Christchurch for the first defendant in proceeding CIV-2015-454-102