VERGEER v O’BRIEN [2020] NZHC 2582
Leave under r 19.5 was granted because the statutory remedy under s 45 was engaged by the absence of an original document, the Registrar would not accept a photocopy, and the matter was suitable for the originating application procedure as there was unlikely to be a need for pleadings, discovery or additional...
Source-derived case information.
- Citation
- [2020] NZHC 2582
- Parties
- Applicant: MARIUS CORNELIUS VERGEER; Applicant: MAREE GRACE VERGEER; Respondent: MICHAEL GERARD O'BRIEN; CHRISTINE MARY O'BRIEN; JEFFREY BERNARD WALKER, as trustees of the M & C O'BRIEN FAMILY TRUST; Respondent: FRANCIS NICHOLAS O'BRIEN; BRONWYN VERNA O'BRIEN; JEFFREY BERNARD WALKER, as trustees of the F & B O'BRIEN FAMILY TRUST PARTNERSHIP
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 1 October 2020
- Procedural Posture
- Proceeding Under the Land Transfer Act 2017 S 45 / Application for Leave Under High Court Rules R 19.5 to Commence by Originating Application
- Outcome
- Leave granted to commence the s 45 Land Transfer Act 2017 proceeding by originating application
- Legal Topics
- Lost or Destroyed Title Registration, Section 45 Land Transfer Act 2017, Leave to Use Originating Application (high Court Rules R 19.5)
Source-derived case record
Summary, issues, holding and outcome
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Parties
MARIUS CORNELIUS VERGEER
Applicant
MAREE GRACE VERGEER
Applicant
MICHAEL GERARD O'BRIEN; CHRISTINE MARY O'BRIEN; JEFFREY BERNARD WALKER, as trustees of the M & C O'BRIEN FAMILY TRUST
Respondent
FRANCIS NICHOLAS O'BRIEN; BRONWYN VERNA O'BRIEN; JEFFREY BERNARD WALKER, as trustees of the F & B O'BRIEN FAMILY TRUST PARTNERSHIP
Respondent
Procedural Posture
Proceeding Under the Land Transfer Act 2017 S 45 / Application for Leave Under High Court Rules R 19.5 to Commence by Originating Application
Legal Issues
- 1 Whether leave should be granted under r 19.5 to bring a s 45 Land Transfer Act 2017 proceeding by originating application
- 2 Whether a photocopy of the original grant suffices for registration or an order under s 45 is required
- 3 Whether the interests of justice favour the originating application procedure in the circumstances
Ratio Decidendi
Leave under r 19.5 was granted because the statutory remedy under s 45 was engaged by the absence of an original document, the Registrar would not accept a photocopy, and the matter was suitable for the originating application procedure as there was unlikely to be a need for pleadings, discovery or additional parties; granting leave promoted a just, speedy and inexpensive determination.
Court Disposition
Leave granted to commence the s 45 Land Transfer Act 2017 proceeding by originating application
Orders
- Leave is granted to the applicants to bring the proceeding under s 45 of the Land Transfer Act 2017 by way of an originating application pursuant to High Court Rules r 19.5.
Full Case Text
Judgment text and source record
1 paragraphs
VERGEER v O'BRIEN [2020] NZHC 2582 [1 October 2020]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECIV-2020-425-59[2020] NZHC 2582UNDER the Land Transfer Act 2017BETWEEN MARIUS CORNELIUS VERGEER andMAREE GRACE VERGEERApplicantsAND MICHAEL GERARD O'BRIEN,CHRISTINE MARY O'BRIEN andJEFFREY BERNARD WALKER, as trusteesof the M & C O'BRIEN FAMILY TRUSTand FRANCIS NICHOLAS O'BRIEN,BRONWYN VERNA O'BRIEN andJEFFREY BERNARD WALKER, as trusteesof the F & B O'BRIEN FAMILY TRUSTPARTNERSHIPRespondentsHearing: Determined on the papersCounsel: S N McKenzie for the ApplicantsJudgment: 1 October 2020JUDGMENT OF ASSOCIATE JUDGE LESTER(on application to commence proceedings by way of originating application)This judgment was delivered by me on 1 October 2020 at 4.00pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy Registrar1 October 2020[1] The applicants seek leave to use the originating application procedure to bringa proceeding pursuant to s 45 of the Land Transfer Act 2017 (the Act).[2] Section 45 of the Act permits the court to order the registration of an intereston a title where the original authority document has been lost or destroyed, or norecord of it can be found. In this case, the applicants have a photocopy of a grant tothem of a forestry right, but they advise the Registrar will not accept a photocopy.[3] An application under s 45 of the Act is not an application that can be broughtas an originating application as of right, hence the applicants require leave under r 19.5of the High Court Rules 2016.[4] The only criteria expressly referred to for the granting of leave are the interestsof justice. The interests of justice means that the court must secure the just, speedyand inexpensive determination of the proceeding.1[5] The issue frustrating the applicants' registration of their interest is that they donot have an original but only a photocopy of the grant. This is not a case which wouldbenefit from a statement of claim and statement of defence being filed. It would seemunlikely there would need to be discovery given the copies of documents held bythe applicants, nor does it seem likely there would be significant disputes of fact, orthe need to involve further parties.[6] Accordingly, I am satisfied it is appropriate that leave be granted to theapplicants to bring the proceeding by way of an originating application and leave isgranted accordingly.__________________________________Associate Judge LesterSolicitors:Preston Russell, Invercargill1 Solar Bright Ltd v Martin [2019] NZHC 300 at [18] and [26].