IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2024-409-499
[2024] NZHC 3606	

UNDER	the Land Transfer Act 2017	
IN THE MATTER	of Caveat Number 13059229.1	
BETWEEN	CHRISTOPHER WILLIAM RAYNER DE WYS
Applicant	
AND	HELEN LETITIA HAWKINS, RICHARD DANVERS HAWKINS and PETER
CLIFFORD MACIASZEK, as executors of the Estate of David Roy Powell Respondents	

Hearing:	18 November 2024	
Appearances:	P A Cowey and K T Mead for Applicant
M J Borcoski and C C Smith Diaz for Respondents	
Judgment:	29 November 2024	

JUDGMENT OF ASSOCIATE JUDGE LESTER

DE WYS v HAWKINS [2024] NZHC 3606 [29 November 2024]

Introduction

[1]	Mr de Wys applies to sustain a caveat intended to protect his claim to part of a right of way which he says should not have been surrendered. Mr de Wys submits the caveat is necessary to prevent the respondents selling a property which includes the now surrendered section of the right of way.

Diagram of the Lots

[2]	Below is a diagram of the Lots (not to scale).

[3]	Mr de Wys has a life interest in Lots A and B left to him (along with a life interest in other  property)  by  the  late  Alison  Powell  (Alison).  Alison  died  on 24 February 2020 leaving a Will dated 31 October 2017 over which Probate was granted on 13 March 2020. I will come back to the identity of the executors of Alison’s estate.

[4]	At the time of Alison’s death, Lot C was owned by her brother, David Powell (David). David died on 24 November 2022 and the respondents are the executors of his estate (the Executors). The Executors as owners of Lot C have sold the property to a third party, that sale was due to settle in September this year, with settlement being held up by Mr de Wys’ caveat.

[5]	Lots A and B are accessed by an approximately 50 metre long driveway created by a right of way easement. Lot C being the burdened land. At the time of Alison’s death, the registered easement on Lot C was 4.5 metres wide. The easement was created in 1999, being granted to Alison by her late brother, David.

[6]	The Executors of Alison’s estate are Garry Thompson  and  Philippa Horn. Mr de Wys  had lodged a notice of claim against  Lots A and B which lapsed on      11 January 2022.1

[7]	Ms Horn and Mr Thompson, as Executors of Alison’s estate, executed a partial surrender of the right of way which reduced its width to 2.7 metres. Mr de Wys said he did not discover the partial surrender until August 2022 and he claims his life interest in Lots A and B includes the benefit of the right of way which he says should not have been partially surrendered.

The original creation of the right of way

[8]	Helen Hawkins (Helen) is the sibling of Alison and David. Helen explains her father purchased the block of land which is now Lots A—E in the above diagram in the 1960s as a family investment. Helen explains that Alison wanted to build on what is waterfront property and on 14 October 1991 she became the owner of Lot A (at the

1	Mr de Wys says he was in a de facto relationship with Alison. That is disputed by members of Alison’s family.

time Lot A included Lot B). At that time, Helen, David and another brother, Richard, became the owners of the remaining Lots. When Richard passed away, David and Helen became the owners of Lots C, D and E.

[9]	Helen explains that in 1993 Alison wanted to add another house on her section and her siblings gave consent. That resulted in Alison’s Lot being subdivided into what is now Lots A and B, with Alison building her home on Lot B.

[10]	The rear Lot always had a right of way to allow vehicle access. Helen explains that due to a dispute with a neighbour when Alison wanted to build the extra house on the rear Lot, Helen was requested to agree to amending the easement so that vehicles could get in and out of the driveway where Lot C meets the main road. Helen said she understood the driveway would be widened over the first 10 metres so that vehicles could get in and out of the driveway without blocking the main road. Helen explains that given the family connection, that was agreed to. The right of way was widened in 1999.

[11]	In fact the width of the driveway was increased at that time for 40 metres of its length. At the time the right of way was widened, there was an old house on Lot C that encroached onto the widened driveway. That old house remained in place until, as I understand it, 2015. Accordingly, prior to 2015 the presence of the old house that restricted the width of the right of way did not prevent the houses on Lots A and B being assessed. The Local Authority required the old house to be demolished when consenting to the widening of the right of way, but it seems the demolition of the old house was deferred. I will return to the circumstances in 2015 that brought the issue of the encroachment of the house to a head.

[12]	It seems no consideration was paid by Alison for the widening of the right of way in 1999.

The basis for Alison’s Executors partially surrendering the right of way

[13]	Mr Thompson explains why he agreed to the partial surrender of the right of way as follows:

3.	In my capacity as Alison’s lawyer, I recall speaking with her about the proposed plans to organise the partial surrender of the easement over 103 Main Rd, Redcliffs. Prior to her passing in February 2020, Alison had spoken to her brother David Powell about the surrender of the easement. I recall Alison telling me that she was quite happy for David to organise the partial surrender of the easement as she did not consider this to be detrimental to her lifestyle, or to her plans to renovate her properties at 101A/101C Main Road.

4.	David Powell was responsible for organising the partial surrender of the easement. In my capacity as Executor for Alison’s Estate, I spoke briefly  with  David  regarding  the   surrender   of  the   easement.    I indicated that I would cooperate with any arrangements made by David. I knew that Alison had previously agreed to the surrender of the easement and as the Executor of her Estate I sought to respect her wishes and the arrangements she had put in place during her lifetime.

[14]	When Mr de Wys’ solicitors sought an explanation for the partial surrender of the right of way then counsel for Alison’s estate, replied:

I confirm that a section of the right of way was surrendered by the Executors. The land was owned by Alison Powell’s brother and sister and is shown on the attached plan. No consideration was claimed on the basis that the residuary beneficiaries of Alison Powell’s Estate are the children of Alison Powell’s brother and sister, and the beneficiaries under their parents’ respective Estates. Access to 101A and 101C was not affected, and neither was the value of your client’s life interest.

The timing of the partial surrender

[15]	As noted in Mr Thompson’s evidence, it was David who took steps to organise the partial surrender. His efforts commenced as early as April 2021.

[16]	On 23 November 2021, solicitors acting for David and Helen, by email forwarded to Mr Thompson the various conveyancing, Council and surveying documents required to achieve the partial surrender of the right of way, including the draft Partial Surrender Instrument.

[17]	The author of the email said:

I note that several steps are required for a partial surrender of the right of way to occur:

•	A Transmission for RT CB39A/867 and CB39A/868 to be completed

•	Consent from Christopher De Wys pursuant to the notice of claim lodged over both benefited records of title (or withdrawal of the notice).

•	Consent from Ferrymead Hardware Limited pursuant to the caveat lodged over benefited RT CB329A/868 (or withdrawal of the caveat).

•	Authority and Instruction Form is required to submit an edealing containing the Partial Surrender of Easement instrument.

[18]	At the time of the above email, Mr de Wys had a notice of claim under the Property (Relationships) Act 1976 lodged over Lots A and B.

[19]	On 20 December 2021, a Transmission was registered from Alison to Ms Horn and Mr Thompson. Ms Horn and Mr Thompson on the same day registered a notice issued to lapse Mr de Wys’ notice of  claim.  Mr Cowey,  counsel for Mr de Wys  (in a submission I will expand on below), considered it significant that Ms Horn and   Mr Thompson on 20 December 2021 signed the Authority and Instruction Form sent by David and Helen’s solicitors on 23 November 2021 at a time when they must have known Mr de Wys’ notice of claim had not then lapsed — the notice to lapse not taking effect until 10 working days after it was lodged, namely 17 January 2022.

[20]	In the evidence, there is nothing of note that occurred between the lapse of Mr de Wys’ notice of claim on 17 January 2022 and the registration of the partial surrender of the easement on 12 May 2022.

The nature of Mr de Wys’ “interest” under Alison’s Will

[21]	Alison’s last Will provided as follows:

3.	I GIVE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and wheresoever situate unto my Trustees to hold the same upon trust to pay thereout all my just debts, funeral and testamentary expenses and to stand possessed of the residue UPON TRUST as follows:-

1.	As from the date of death to permit CHRISTOPHER WILLIAM RAYNER DY WYS to have the free use, income, occupation and enjoyment thereof during his lifetime subject to his paying all outgoings in respect of any property for which he has the use, income or occupation.

[22]	Following Mr de Wys’ death, the residue passes to the children of Helen and David living as at the date of Alison’s death. Helen and David are not beneficiaries under Alison’s Will.

The interest claimed in Mr de Wys’ caveat

[23]	Mr de Wys’ caveat claims the following interest:

Estate or Interest claimed

The Caveator claims a beneficial interest in the land marked “Z” on Lot 3 Deposited Plan 12716 contained in Record of Title CB742/48 (“Z”) as cestui que trust of which the registered proprietors, Richard Hawkins and Clifford Maciaszek as Executors of the Estate of David Powell and Helen Hawkins are trustees (“the Trustees”). The Trustees knowingly received the Surrender of Easement 12447701.1 over “Z” otherwise than in good faith and for no consideration (“the Surrender”). The Trustees hold “Z” for and on behalf of Philippa Evelyn Horn and Garry Patrick Francis Thompson as Executors of the Estate of Alison Powell, being the Registered Proprietors of Lot 2 Deposited Plan 66694 contained in Record of Title CB39A/868, in respect of which the caveator has a life interest. The Executors knowingly registered the Surrender.

Mr de Wys’ application to sustain his caveat

Relevant principles

[24]	The relevant principles were not in dispute.

[25]	The approach to be taken by the Court in determining whether to make an order that a caveat not lapse, was described by the Court of Appeal in Philpott v Noble Investments Ltd:2
[26]	The applicable legal principles which governed the application to sustain the caveats, and which now govern this appeal, are as follows:

a)	The onus is on the applicants to demonstrate that they hold an interest in the land that is sufficient to support the caveat, but they need not establish that definitively;

b)	It is enough if the applicants put forward a reasonably arguable case to support the interest they claim;

c)	The summary procedures involved in applications of this nature are not suited to the determination of disputed questions of fact. An order for the removal of a caveat will only be made if it is patently clear that the caveat cannot be maintained — either because there is no valid ground for lodging it in the first place, or because such a ground no longer exists; …

2	Philpott v Noble Investments Ltd [2015] NZCA 342.

[26]	The threshold for sustaining a caveat is not a high one and requires the caveat be sustained unless it is “patently unmaintainable”.3

[27]	The caveator must show an entitlement to a beneficial interest in the land.4

[28]	The application to sustain the caveat was made on the grounds that Mr de Wys has an interest in the surrendered right of way:

(b) The surrender of [the Easement] by Instrument No 12447701.1 (“the Surrender”), was obtained otherwise than in good faith and for no consideration; the grantees of the Surrender, being the then proprietors of 103 Main Road, had actual knowledge or were wilfully blind to the applicant’s interest in [the Easement] and intended that the registration of the Surrender would defeat the applicant’s said interest;

…

(e)      The applicant therefore, has an interest in 103 Main Road pursuant to a cestui que trust over the area of [the Easement], of which the respondents, being the registered proprietors, are trustees.

[29]	The caveat is said to be necessary as Mr de Wys is in the process of applying to reinstate the right of way.

[30]	Mr Cowey’s submissions summarised what Mr de Wys had to establish as follows:

29.	… in Jeb Management Ltd v Grubz United Whanau Trust, where the Court held that where a claim to a constructive trust is based on an allegation that the registered owner is liable to the caveator in knowing receipt, the claim will support a caveatable interest if it is reasonably arguable that the registered owner has committed fraud to the land transfer standard.5

30.	To establish a claim in knowing receipt, the applicant must show that:

(a)	[the Easement] was disposed of in breach of trust or fiduciary duty;

(b)	The respondents received the surrender of [the Easement]; and

3	Philpott v NZI Bank Ltd (1989) 1 NZ ConvC 190,246, [1990] ANZ ConvR 242 (CA), at 7.
4	Guardian Trust and Executors Company of New Zealand Ltd v Hall [1938] NZLR 1020 (CA) at 1025.
5	Jeb Management Ltd v Grubz United Whanau Trust [2015] NZHC 157 at [46].

(c)	On receipt, the respondents knew that the surrender of [the Easement] was attributable to a breach of fiduciary duty or breach of trust.

(emphasis added)

[31]	There is a preliminary issue which Ms Borcoski, counsel for the respondents, submits is a complete answer to Mr de Wys’ claim to have had a caveatable interest in the right of way. Ms Borcoski submits that because Alison’s estate is still in the course of administration the residue has not yet been ascertained and therefore Mr de Wys does not, at the moment, have an interest in the residue. Any interest Mr de Wys may have only arises upon the administration coming to an end when Mr Thompson and Ms Horn will hold the residue as trustees rather than as an administrators.

[32]	I will deal with that argument  below  but  there  is  another difficulty  with Mr de Wys’ submission.

A breach of duty by whom?

[33]	The partial surrender of the right of way was  undertaken by Ms Horn and  Mr Thompson. They became the registered proprietors of Lots A and B with the benefit of the right of way and dealt with the solicitors acting for David and Helen, who wrote the November email referred to at [16] and [17] above.

[34]	It is arguable that the surrender of the right of way involved a breach of duty owed to Mr de Wys by the Executors of Alison’s estate. While Mr Thompson has sworn an affidavit for this proceeding, the Executors are not represented. The basis upon which the Executors were required, that is, had a legal obligation to surrender the right of way has not been articulated. Mr Thompson’s evidence refers to what might be called an ‘understanding’ he had with Alison. The advice from counsel then acting for Alison’s estate seems to suggest the surrender was on the basis it was considered there would be no loss to the estate. While Ms Borcoski submitted there is no evidence of a loss of value to the estate through the surrender of the right of way, the reduction of a 4.5 metre right of way to 2.7 metres may well have an impact on the value of the properties serviced by the right of way which in turn may have an impact on the value of Mr de Wys’ life interest in those properties.

The 2015 ‘dispute’ over the right of way

[35]	In 2015, the solicitors then acting for David wrote to Alison about a ‘dispute’ over the right of way. The letter claims the formation of the right of way was a favour so that Alison could comply with the Council legal width requirements for the right of way. The letter refers to the dwelling on Lot C being located on part of the easement area.

[36]	Apparently, Mr de Wys was calling for the old house to be demolished to allow a large crane to have access down the driveway to undertake sea wall repairs for the rear Lots.

[37]	Alison and Mr de Wys replied directly noting Alison had paid a bond to the Council that would be returned to her only when the old house on Lot C was demolished, which the Council had required be completed within 24 months.

[38]	Alison and Mr de Wys, in their letter, stated they were entitled to the benefit of the right of way and disputed it was in effect a ‘device’ only created to satisfy the Council. Alison and Mr de Wys separately offered to fund the demolition of the old house which had fallen into disrepair. The house was eventually removed at around this time.

[39]	Accordingly, Mr Cowey submits the following factors are relevant:

(a)	Mr de Wys did not consent to the partial surrender of the right of way;

(b)	the Executors provided no value to Alison’s estate for the partial surrender; and

(c)	David  and  Helen  knew  from  the  correspondence  in  2015  that  Mr de Wys and Alison considered the right of way to be important to them.

What is required for Land Transfer Act 2017 fraud?

[40]	Helen and David’s dealings to obtain the partial surrender of the right of way were through their solicitor.

[41]	Section 51 of the Land Transfer Act 2017 (the Act) provides that on registration of a person as the owner of an estate or interest in land that person obtains a title to the estate or interest that cannot be set aside. That title is free from estates and interests that are not registered or noted on the Register or are not capable of being registered or noted on the Register.

[42]	Section 51(3) of the Act provides there are exceptions to the above rule, the relevant one being s 52(1) of the Act which provides:

The title of the registered owner to an estate or interest in land is subject to the following exceptions and limitations:

(a)	In a case where the title of the estate or interest of the registered owner is acquired through fraud on the part of the registered owner or the registered owner’s agent.

(emphasis added)

[43]	The other exceptions under s 52 of the Act are not applicable here.

[44]	Mr Cowey confirmed that there is no suggestion of fraud on behalf of Helen and David’s solicitor who acted for them in relation to obtaining the partial surrender of the easement. Accordingly, fraud on behalf of Helen and David’s agent need not be considered. Mr de Wys must show an arguable case that the Executors acquired registration of the partial surrender of the right of way through fraud.

[45]	Fraud is defined in s 6 of the Act as follows:

6	Meaning of fraud

(1)	For the purpose of this Act, other than subpart 3 of Part 2, fraud means forgery or other dishonest conduct by the registered owner or the registered owner’s agent in acquiring a registered estate or interest in land.

(2)	For the purposes of subsection (1), the fraud must be against—

(a)	the registered owner of an estate or interest in land; or

(b)	the owner of an unregistered interest, if the registered owner or registered owner’s agent,—

(i)	in acquiring the estate or interest had actual knowledge of, or was wilfully blind to, the existence of the unregistered interest; and

(ii)	intended at the time of registration of the estate or interest that the registration would defeat the unregistered interest.

(3)	For the purpose of subpart 3 of Part 2, fraud means forgery or other dishonest conduct by any person.

(4)	The equitable doctrine of constructive notice does not apply for the purposes of deciding whether conduct is fraudulent.

[46]	At one point, Mr Cowey submitted that the knowledge of Helen and David’s solicitor might be relevant to assessing whether Helen and David were fraudulent. However, s 6(4) means that Helen and David are not fixed with constructive knowledge of their solicitor and again, Mr Cowey accepted there had been no fraud by the solicitor involved.

[47]	Mr Cowey submitted it was significant that Helen and David’s solicitor, assuming he received the signed Authority and Instruction Form at the end of December 2021, would have known at that stage that the Form could not be acted on because at that stage Mr de Wys’ notice of claim was still on the title. Assuming that is correct, again any such knowledge cannot be attributed to Helen and David because of s 6(4) of the Act set out above. In any event, the relevant time for assessing fraud is at the date of registration which was not until May 2022.

[48]	It is clear that in the Act’s context, fraud means dishonesty of some sort.6 The test of dishonesty is a moral one, that is, there must be something in the nature of moral turpitude.7
(3) Fraud must be brought home to the person whose registered title is impeached or to that person’s agents. That the forgery or dishonest conduct constituting the fraud must be conduct of the registered owner

6	Assets Co Ltd v Mere Roihi [1905] AC176 at 210.
7	Neil Campbell and others Principles of Land Law in New Zealand (3rd ed, LexisNexis, Wellington, 2020) ) at [9.020].

or the registered owner’s agent is expressly provided for as part of the statutory definition of fraud. Fraud by other persons (for example, the transferor in the transfer instrument upon registration of which the registered proprietor acquired title) does not affect the registered owner ...

(footnotes omitted and emphasis added)

[49]	Mr de Wys complains the Executors of Alison’s estate surrendered the easement without his permission  and  for  no  consideration.  The  high  point  for Mr de Wys is that Mr Thompson and Ms Horn’s conduct amounted to fraud under the Act. But that would be fraud by another person — fraud by:8
… the transferor in the memorandum of transfer by which, on its registration, the present registered proprietor has obtained his title — is insufficient unless the latter also has been fraudulent.

[50]	Assuming that Mr Thompson and Ms Horn’s conduct was a breach of duty they owed as Executors owed to Mr de Wys then, as per Mr Cowey’s submissions set out at [30] above, the Executors (that is, the respondents) must themselves have committed fraud to the standard under the Act.

[51]	I find Mr de Wys has not established an arguable case that David and Helen committed fraud under the Act in obtaining the partial surrender of the right of way.  I reach that conclusion for the following reasons.

[52]	In relation to the partial surrender, Helen and David dealt through their solicitor who communicated with Mr Thompson and Ms Horn who, as well as being Executors, acted for Alison’s estate.

[53]	Helen and David’s solicitor, as noted at [17] above, recognised that consent or the surrender of his notice of claim was required before the surrender could be registered. Mr de Wys’ notice of claim lapsed in the New Year of 2022, meeting this requirement. Accordingly, Mr de Wys’ interest was recognised by Helen and David’s solicitor who spelt out what had to occur for the partial surrender of the right of way to be registered.

8	Sutton v O’Kane [1973] 2 NZLR 304 at 321.

[54]	Helen and David were entitled to rely on matters being dealt with between the solicitors and to rely on their solicitor’s advice as to what  had to  occur  to  allow  the right of way to  reduce.  It  was  not  for  them  to  communicate  directly  with Mr de Wys and indeed, the evidence is that the relationship between them was difficult. In those circumstances, it made sense for the communication to be solicitor to solicitor. While Mr Thompson and Ms Horn did not act for Mr de Wys, again absent fraud on the part of Helen and David, any breach of duty by Mr Thompson and Ms Horn as regards Mr de Wys, even if it did amount to fraud under the Act, does not impeach the respondents’ title.

[55]	I come back to the factors Mr Cowey relied on.  The first is the absence of  Mr de Wys’ consent — he saying Helen and David were on notice that Mr de Wys’ consent was required. That is not what Helen and David’s solicitors’ email advised. Again, the passage set out at [17] above was that Mr de Wys’ consent or withdrawal of his notice of claim was required. The notice of claim had lapsed. In any event, consent was a matter between the Executors of Alison’s estate and Mr de Wys.

[56]	Next was the fact that the surrender was for no value. Alison and David knew they had provided no value to Alison’s estate but then again, David did not receive value when the widened right of way was created. What, if any, arrangements were made between Alison’s estate and Mr de Wys they did not know, nor did they have any means of knowing because they were not beneficiaries of that estate, nor did they have any incentive to raise that issue. Their solicitor wrote asking for the partial surrender of the right of way which was agreed to by the solicitors for Alison’s estate
— what more were they to do having put the matter in the hands of their solicitor who was dealing with the solicitor of the Estate.

[57]	Mr Cowey refers to David and Helen having been involved in matters concerning Alison’s estate prior to the surrender of the easement and there is some support for that in the evidence but none of that evidence relates to the issue of the right of way. Given constructive knowledge is not relevant for finding actual fraud that Helen and David may have had some involvement in Alison’s estate, does not fix them with any relevant knowledge.

[58]	Finally, there is the dispute in 2015 in respect of the easement. Obviously, with Alison’s death circumstances had changed. This submission seems to be that the dispute means it is unlikely that Mr de Wys will have agreed to the surrender but again, that is a matter between him and the Executors of Alison’s estate.

[59]	Obviously, Helen and David knew that surrender of the right of way would mean Mr de Wys would lose the ability to use that area. That was the point of surrender. But mere awareness, that is, notice that registration will impact on someone who may have an interest in the land does not amount to fraud under the Act.

[60]	The difficulty for Mr Cowey in this argument is that the partial surrender was undertaken solicitor to solicitor. Helen and David had no way of knowing whether there was any breach of duty involved in Mr Thompson and Ms Horn’s actions. That Helen and David did not provide any consideration to Alison’s estate does not mean they knew that the surrender of the easement may have been attributable to a breach of duty by Mr Thompson and Ms Horn. Helen and David were isolated from what was happening between the Executors of Alison’s estate and Mr de Wys as they were dealing through their own solicitor.

[61]	In the absence of an arguable case of fraud under the Act, the application to sustain the caveat fails.

Did Mr de Wys have an interest in the partially surrendered right of way at all?

[62]	Ms Borcoski submits there must be a fixed and ascertainable interest in land to support a caveat.9

[63]	Once administration of an estate is completed,  a residuary legatee can have   a beneficial caveatable interest in specific land.10

9	Rutherford v Rutherford [2015] NZHC 878, [2015] NZAR 1303 at [18].
10	At [19].

[64]	Section 138 of the Act provides:

Caveats against dealings with land

(1)	A person may lodge a caveat against dealings with an estate or interest in land (a caveat against dealings) on the basis that the person—

(a)	claims an estate or interest in the land, whether capable of registration or not; or

(b)	has a beneficial estate or interest in the land under an express, implied, resulting, or constructive trust; or

(c)	is transferring the estate or interest in the land to another person to be held on trust; or

(d)	is the registered owner of the estate or interest in the land and—

(i)	has an interest that is distinct from that of registered owner; or

(ii)	establishes to the satisfaction of the Registrar that at the time the caveat is lodged there is a risk that the estate or interest may be lost through fraud.

[65]	While the Act allows a beneficiary under a trust to claim a caveatable beneficial interest in specific land, the holder of a beneficial interest in land under a Will has been denied the ability to caveat estate property.11 In Guardian Trust, the Court of Appeal held that a beneficiary under a trust who can point to a specific interest in land has a caveatable interest pursuant to the Will. However, if the claimed interest by the caveator is to share in the residue of an estate, which includes the value of the property, such will not support a caveat of that property. The Court said:12
… the legatee of a share in residue has no interest in any of the property of the testator until the residue has been ascertained, and that his right is to have  the estate properly administered and applied for his benefit when the administration is complete.

[66]	Ms Borcoski, pointing to the terms of Alison’s Will set out at [21] above, notes that Mr de Wys was left the residue of the estate rather than a life interest in specific properties.

11	Guardian Trust and Executors Company of New Zealand Ltd v Hall, above n 4.
12	At 1026.

[67]	Mr Cowey sought to distinguish Guardian Trust on the basis in that case the caveator was only entitled to a share of the residue whereas here, Mr de Wys has a life interest in the entire residue.

[68]	The discussion in Rutherford suggests a beneficiary who is left specific property could have sufficient rights to support a caveat.13

[69]	Woolford  J   in   Rutherford   considered  that  whether  the   applicant   had  a caveatable interest depended on whether the administration of the estate was complete or not. If administration was complete then the question became whether the interest in the property, held under trust, was specific and certain enough to be capable of sustaining a caveat. If the administration was not complete (as here), then the question was whether the interest was either a general interest in the estate residue and thus incapable of supporting the caveat on the basis of the Guardian Trust authority or an interest as a specific legatee in which case there was uncertainty as to whether an interest as a specific legatee can support a caveat.

[70]	In Scales v Scales, Associate Judge Osborne, referring to the head note in
Holden v Allen, noted:14

Where the right or liberty of occupation for life is given by a will, the use of the word occupy is equivalent to the grant of an estate for life unless there are words in the will which clearly cut down the right to that of personal occupation only.

[71]	Accordingly, once the administration of Alison’s estate is concluded, there is a reasonable argument that because Mr de Wys is given the right to occupy the properties that then remain, that he has a life interest in those properties.

[72]	However, the key point from the preceding paragraph is the reference to: “the properties that then remain”. At the time of her death, Alison had five properties. One of those properties has already been sold to cover debt and in a settlement of litigation between Alison’s Executors and Mr de Wys, the potential for the sale of other properties is accepted by Mr de Wys.

13	See Rutherford v Rutherford, above n 9, at [21].
14	Scales v Scales (2009) 10 NZCPR 479 at [13] citing Holden v Allen (1903) 6 GLR 87.

[73]	The reality of the administration continuing is all that the assets in the estate, including Lots A and B, are subject to the control and potential sale by Alison’s executors.

[74]	I do not consider that Guardian Trust is distinguishable on the basis in that case the caveator was entitled to a share in the residue as opposed to the entire residue. Until administration is complete what, if anything, will be in the residue is unknown. That is the case whether a beneficiary is entitled to a share or all of the residue.

[75]	It is clear beyond doubt that the estate administration was ongoing as at the date the partial surrender was registered on 12 May 2022 — indeed it is ongoing. Alison’s estate had to issue proceedings against Mr de Wys in relation to his retention of rents from properties in the estate and the contents of the settlement of that litigation confirm estate administration is ongoing.

[76]	Mr de Wys does not have a vested interest in any of the assets of the estate because the administration is ongoing. While it may well be Mr de Wys will be able to remain living on Lot B, that is not certain as the settlement agreement he entered into with the Executors of Alison’s estate records that property can be sold by Alison’s executors if needs be.

[77]	I accept Ms Borcoski’s submission that because the estate is still in administration, Mr de Wys does not have a fixed and ascertainable interest in the land that benefitted from the partially cancelled right of way so as to have a caveatable interest in the land burdened by the right of way.

[78]	Accordingly, it follows that Mr de Wys’ application to sustain the caveat is
dismissed.

Costs

[79]	Costs should follow the event. Memoranda may be filed. Ms Borcoski is to

file and serve her memorandum as to costs within 10 working days and any reply to be filed and served within a further 10 working days.

Associate Judge Lester

Solicitors:
Parry Field, Christchurch (for Applicant)
Saunders Robinson Brown, Christchurch (for Respondents)