NICHOLAS v REGISTRAR-GENERAL OF LAND [2020] NZHC 645

NICHOLAS v REGISTRAR-GENERAL OF LAND [2020] NZHC 645 [25 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-479[2020] NZHC 645BETWEEN KAREN MARIE NICHOLAS, BRYANTCHASE AND GEORGE ROYAL ASRESPONSIBLE TRUSTEES OF THEMAHIMAHI E5 AHU WHENUA TRUSTApplicantsAND REGISTRAR-GENERAL OF LANDRespondentHearing: 25 March 2020(Via telephone)Counsel: D A CowanJudgment: 25 March 2020JUDGMENT OF WHATA JThis judgment was delivered by me on 25 March 2020 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Doug Cowan, Auckland[1] The Mahimahi E5 Ahu Whenua Trust (Trust) and the named trustees areapplying for an order to remove a "no survivorship" notation on the title of land locatedat 6 Mepal Place, Manukau Central, Auckland 1010 (the Mepal property). An affidavitby George Craig Royal, one of the named trustees, is submitted in support of theapplication.[2] As we are currently in Covid-19 alert level 3, I convened a conference for thepurpose of hearing this matter. The respondent has also indicated that, subject tocertain assumptions (mentioned within this judgment), it does not oppose theapplication. Attendance of counsel for the respondent was therefore excused.[3] I make the order sought. My reasons follow.Background[4] The background to this application is brief. The applicants are trustees of theTrust. On or about 19 November 2009, the Trust bought the Mepal property. Thenotation of "no survivorship" was entered on or about 2 November 2012 to show thatthe Mepal property was held by the registered owners, namely, Grant Nicholas, BryantChase and Anahera Pomare (as trustees of the Trust). This was because the Trust couldnot be noted on the register. Then, on 3 September 2013, Karen Marie Nicholas wasalso registered, as she was appointed an additional trustee.[5] The Mepal property has been used as a commercial lease property, earning theTrust regular income through its multiple tenants. On or about 17 February 2019, thetrustees met at their quarterly trustee hui in Auckland where the ongoing retention ofthat property was discussed. Overall, the trustees expressed a desire to sell theproperty because it increasingly required more active management, which did not suitthe Trust's operation. Then, on or about 18 October 2019, the Trust engaged ColliersInternational to market and sell the Mepal property. On 14 December 2019, the Trustentered into a sale and purchase agreement with the trustees of the Araquay Trust tosell the property for $2.408M. That agreement went unconditional on 26 December2019 and was to settle on 20 February 2020. On 15 January 2020 the trustees thenformally resolved to sell the Mepal property.[6] On 4 February 2020, the purchasers' solicitor applied for orders that the "nosurvivorship" notation be removed from the relevant record of title upon theregistration of the transfer. Settlement, however, had been postponed to 20 March2020 because of that application and the need to remove the "no survivorship"notation.General Registrar of Lands[7] The General Registrar of Lands has indicated that it does not oppose theapplication on the basis that it understands:(a) The relevant land is classified as general land for the purposes of TeTure Whenua Māori Act 1993;(b) the applicants have complied with the requirements of the relevant trustdeed; and(c) the applicants have obtained all necessary approvals to sell and transferthe relevant land.Issues and assessment[8] In reviewing this matter, I identified the following issues:(a) the powers of the Trustees to dispose of the Mepal property;(b) the processes the Trustees must follow in deciding to sell its properties;(c) whether the trustees actually followed those processes; and(d) whether the sale requires oversight by the Māori Land Court.Power to sell[9] Turning then to these issues. Clause 5 of the Ahuwhenua Trust Deed (Deed)confers a general power to sell trust property as follows:5. General: In furtherance of the objects of the Trust, the Trustees areempowered to do all or any of the things which they would be entitledto do if they were the absolute owners of the Trust assets providedhowever that:5.1 The Trustees shall not alienate the whole or any part of the feesimply of the Trust corpus by gift, sale, mortgage or chargeother than by way of:5.1.1 Exchange on the basis of land for land value and then effectedby Court order; or5.1.2 In settlement of a proposed acquisition pursuant to the PublicWorks Act or similar statutory authority.[10] As Mr Cowan submits, while not a specific power to sell, this general poweris sufficient to enable the Trust to sell any property other than Trust corpus. The Trustcorpus is defined as follows:TRUST CORPUS"All that parcel of land situated in Block IV Survey District containing62.5988 hectares more or less being the pieces of land called Mahimahi E5and being all the land described in Partition Order of the Māori Land Courtdated the 5th day of August 1947."[11] The Mepal property is not Trust corpus. Accordingly, the Trust may sell theMepal property.Process[12] Clause 7 of the Deed provides for trust meetings, while cl 8 provides for trustdecisions. Relevantly, cl 7 provides for meetings by telephone conference and statesthat quorum is a simple majority. Clause 8 also states:8.1 Any of the powers and authorities hereby given to or vested in theTrustees may at any time be exercised by a majority of the Trusteesand all acts and proceedings of such majority of the Trustees shall, insuch case, be as valid and effectual as if they had all concurred therein.[13] Ms Claudia Louise Harnett (a solicitor for the Trust) filed a supplementaryaffidavit setting out the circumstances of the Trust's decision to sell the land. Thedecision was made unanimously by all the trustees via telephone conference, inaccordance with both cls 7 and 8 of the Deed.Is Māori Land Court oversight needed?[14] Mr Cowan submits for the applicants:(a) No orders are required from the Māori Land Court, the land beinggeneral land for the purposes of Part 6 of Te Ture Whenua Māori Act1993.(b) Having discussed the matter with the LINZ solicitor, they would notrequire the oversight of the Māori Land Court as it is general land butthe applicants may need to notify the Māori Land Court of its intentionto remove the "no survivorship" notation.(c) On 24 February 2020, the applicants notified the Māori Land Court ofits intention to remove the "no survivorship" notation, without aresponse.[15] I agree that Māori Land Court oversight is not required in this case. The Deedpermits the sale of the land without recourse to beneficiaries, the land is general land,and the land is not part of the Trust corpus land. The protective provisions of Te TureWhenua Māori Act 1993 are not engaged.[16] I am therefore satisfied that the "no survivorship" notation should be removedfrom the relevant record so as to enable conclusion of the property sale.[17] No application was made for costs. To the extent necessary, however, thereasonable costs of making this application may be paid by the Trust.