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constructive trusts, General, Land Transfer Act, Trustee Act, Vesting order

Once there were ten, now there are six – but the trust argument is avoided

Land owned by ten different owners as tenants in common was sold to a buyer who was required to apply for resource consents to subdivide the property and to obtain new titles. There was a dispute and following a settlement conference Harrison J ordered that on titles being issued the owners were to transfer one lot to the buyer.

This process was long delayed. Ten years later the subdivision was completed and titles issued but a new problem arose: it was impossible to obtain transfers from all of the land owners. Three had died and one had been relocated to Australia under the witness protection scheme (and also appeared to have died since).

The plaintiff therefore brought a claim seeking a vesting order under s 52 of the Trustee Act 1956 on the basis that as a consequence of four of the named defendants being deceased  a resulting or constructive trust arose in favour of the plaintiff, on the terms of the original order by Harrison J in 2008. The plaintiff also claimed that it was unnecessarily burdensome to require all six of the remaining defendants to sign the transfer documents so that the Court Registrar should be authorised to sign under s 3 of the Judicature Amendment Act 1910.

One of the remaining defendants signed a consent to the claim. A second filed a statement of defence but subsequently took no steps. None of the other defendants took steps to oppose the proceeding.

Ultimately Woolford J considered it preferable to use s 3 of the Judicature Amendment Act 1910 and to avoid examining the original intention of Harrison J’s order, and whether it gave rise to a trust. Accordingly, whether a trust arose under the fact situation was, unfortunately, not canvassed in the judgment.


Pivac v Hagger [2018] NZHC 774


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