Vergeer v O'Brien

[2020] NZHC 2582

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2020-425-59

[2020] NZHC 2582

UNDER

the Land Transfer Act 2017

BETWEEN

MARIUS CORNELIUS VERGEER and MAREE GRACE VERGEER

Applicants

AND

MICHAEL GERARD O’BRIEN, CHRISTINE MARY O’BRIEN and

JEFFREY BERNARD WALKER, as trustees of the M & C O’BRIEN FAMILY TRUST and FRANCIS NICHOLAS O’BRIEN, BRONWYN VERNA O’BRIEN and

JEFFREY BERNARD WALKER, as trustees of the F & B O’BRIEN FAMILY TRUST PARTNERSHIP

Respondents

Hearing:	Determined on the papers
Counsel:	S N McKenzie for the Applicants
Judgment:	1 October 2020

JUDGMENT 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 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 1 October 2020

VERGEER v O’BRIEN [2020] NZHC 2582 [1 October 2020]

[1]                 The applicants seek leave to use the originating application procedure to bring a 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 interest on a title where the original authority document has been lost or destroyed, or no record of it can be found. In this case, the applicants have a photocopy of a grant to them 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 brought as an originating application as of right, hence the applicants require leave under r 19.5 of the High Court Rules 2016.

[4]                 The only criteria expressly referred to for the granting of leave are the interests of justice. The interests of justice means that the court must secure the just, speedy and inexpensive determination of the proceeding.1

[5]                 The issue frustrating the applicants’ registration of their interest is that they do not have an original but only a photocopy of the grant. This is not a case which would benefit from a statement of claim and statement of defence being filed. It would seem unlikely there would need to be discovery given the copies of documents  held  by the applicants, nor does it seem likely there would be significant disputes of fact, or the need to involve further parties.

[6]                 Accordingly, I am satisfied it is appropriate that leave be granted to the applicants to bring the proceeding by way of an originating application and leave is granted accordingly.

Associate Judge Lester

Solicitors:
Preston Russell, Invercargill

1      Solar Bright Ltd v Martin [2019] NZHC 300 at [18] and [26].