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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2009-485-2167

IN THE MATTER OF	the Land Transfer Act 1952
AND IN THE MATTER OF  an appeal under section 217 of the Act

BETWEEN	RAYLEE PATRICIA HARLEY Applicant

AND	THE REGISTRAR-GENERAL OF LAND Respondent

Hearing:	11 March 2010

Further
Submissions:  19/26 March 2010

Counsel:	C R Carruthers QC for Applicant
J R Burns for Respondent

Judgment:	30 March 2010

JUDGMENT OF RONALD YOUNG J

Introduction

[1]       Mr  and  Mrs Harley  wanted  to  subdivide  18 hectares  of  land  owned  by Mrs Harley  at  Boomrock  Road.    They  faced  the  impediment  of  the  Resource Management Act 1991 (RMA) and an amalgamation condition attached to the title. This said that the 18 hectares, which was in five lots, was to be held in one title.

[2]       Their plan  was  to by-pass both impediments by the use of the Property (Relationships)  Act 1976  (PRA).    They obtained  orders  from  the  Family Court. These said they had an equal interest in the land.  The orders divided the property
into ten lots and directed the Registrar-General to issue four new titles.  However,

RAYLEE PATRICIA HARLEY V THE REGISTRAR-GENERAL OF LAND HC WN CIV 2009-485-2167  30
March 2010

the Registrar-General of Land refused to do so.  He said the RMA provided a code for subdivision of land and the issue of titles.  The RMA had not been complied with and irrespective of the Family Court orders he refused to issue new titles (now computer freehold registers).

[3]       Mrs Harley now makes an application pursuant to s 217 of the Land Transfer Act 1952  calling  upon  the  Registrar-General  to  substantiate  the  grounds  of  his refusal to issue the titles.

Background facts

[4]       The land in issue is currently described as Lots 3 to 7, deposited plan 332529 consisting of 18.1795 hectares.   The land is in one certificate of title, computer freehold register 293771.  The land is subject to a condition, pursuant to s 241(2) of the RMA (the amalgamation condition), which provides:

That lots 3, 4, 5, 6 and 7 herein are to be held together and that one computer freehold register is to be issued for all these parcels.

[5]       Proceedings in the Family Court were filed in April 2008.  The orders sought by Mr and Mrs Harley were:

a)        dividing  an  item  of  relationship  property  at  135 Boomrock  Road between them;

b)	vesting half shares in 135 Boomrock Road in each one of them;

c)        partitioning   135 Boomrock   Road   in   those   half   shares   and   in accordance with the proposed partition of lots 3 to 7 of DP 332529; with the effect that lots 1 and 2 are partitioned in one single title and vested in Geoffrey Harley; lots 5, 6, 7 and 8 are partitioned in one single title and vested in Geoffrey John Harley; lots 5, 6, 7 and 8 are partitioned in one single title and vested in Raylee Harley; lots 9 and
10	are	partitioned	in	one	single	title	and	vested	in

Raylee Patricia Harley.

[6]       No  mention  was  made  in  either  the  application,  nor  in  the  affidavit  by

Mrs Harley filed in support, of the s 241(2) condition ([4]).

[7]       Eventually the Court on 4 June 2008 made the orders sought in the original application after correction of the application.  As can be seen the above application ([5]) was in error.  It gave lots 5, 6 7 and 8 to both Mr Harley and Mrs Harley and failed to mention lots 3 and 4 at all.   Eventually an amended order was made reflecting the parties’ intention that Mr Harley would have lots 5, 6, 7 and 8 and Mrs Harley lots 3 and 4.

[8]       Subsequently a surveyor lodged a subdivisional plan with Land Information New Zealand (LINZ) on behalf of Mrs Harley.  The plan showed ten new lots.  The plan had no local authority certificate (of compliance with the RMA) but it said it was relying upon the Family Court orders which were attached.  While the plan was approved it was never deposited and no titles issued.

[9]       In September 2008 the solicitors for Mrs Harley lodged the 4 June Family

Court  orders  and  applications  for  the  issue  of  four  new  titles  with  LINZ.    On

10 September  this  application  was  rejected  by  the  Registrar-General.    Further attempts to obtain the four titles were also rejected by the Registrar-General through until early December 2008.  The Registrar-General rejected the applications because he considered to issue the new titles the plan had to comply with the RMA.  In the view of the Registrar-General it did not.

[10]     Further, the Registrar-General also said that the orders of the Family Court of

4 June contained no direction to deposit the plan or to issue titles.

[11]     On 16 December 2008, therefore, the Harleys applied to the Family Court

“for ancillary orders as to the implementation” of the 4 June orders.

[12]     Mrs Harley in her affidavit filed in support of the ancillary orders said:

The District Land Registrar has advised that he cannot register this Court’s orders made on 4 June 2008 without further specific orders being made: directing him to deposit plan 408590, directing him to register the schedule of easements, both S&E and plan 408590 directing him to discharge the

memorandum on the presence of the title that the land is subject to s 241(2) of the Resource Management Act 1991 and directing him to issue separate computer registers in terms of plan 408, 590 on application made by dealing
7944177.

[13]     Accordingly,  the  orders  sought  from  the  Family  Court  reflected  what Mrs Harley had said was the Registrar-General’s advice although she did not attach a copy of the Registrar-General’s letter of 10 December 2008.

[14]     In his letter of 10 December 2008 the Registrar-General said:

The  effect  of  the  Resource  Management  Act 1991  (“RMA”)  on  Court orders made under the Property (Relationships) Act 1976 (“PRA”)

5.         You say the RMA must be read subject to the PRA and therefore it is not open to me to say the Court order must comply with the RMA.

6.         While  I  do  not  necessarily  agree  with  your  reasoning,  it  is  not relevant in this particular case.

Deposit of Plan 408590 and Orders for new computer registers

7.         At  paragraph 10  of  your  letter  you  note  that  there  has  been  an application for issue of titles accompanied by a copy of the sealed Court order.

8.         The   Orders   for   new   computer   registers   lodged   as   part   of Dealing 7944177 are signed by you and Geoffrey John Harley – there  is  nothing  in  the  Family  Court  order  dated  4 June 2008 directing me to issue computer registers.   The Court order is also silent about depositing Plan 408590 under section 167 of the LTA.

9.         Section 41 of the PRA only directs me to register the order; it cannot be read as directing me to deposit Plan 408590 and issue computer registers because the order of 4 June 2008 does not refer to those matters.

10.       Although section 41 of the PRA does direct me to register the order, I  cannot  do  that  without  depositing  a  plan  in  accordance  with section 167 of the LTA and cannot give effect to the order without using the computer registers that you have requested.   The RMA forbids me from depositing Plan 408590 and from issuing computer registers  unless  the  plan  is  approved  in  accordance  with  its provisions.

11.       Please  also  note  the  Court  order  makes  no  explicit  reference  to Plan 408590.  Before I could register the partition I would require an amended order that refers to the plan by its number.

Decision

12.       I confirm LINZ Auckland’s refusal to register the Family Court order of 4 June 2008 and issue separate computer registers in terms of Plan 408590 to yourself and Geoffrey Harley.

13.       To allow the Court order to be registered and given full effect by the issue of separate computer registers, Plan 408590 must comply with the provision of the RMA.

[15]     The further Court orders of 18 December 2008 provided:

On application made to it, the Court makes the following orders by consent for the implementation of the order numbered 3 and made by the Court on
4 June 2008:

1.         Directing   the   District   Land   Registrar   to   deposit   attached
Plan 408590 Wellington Land Registry.

2.         Directing the  District Land  Registrar to register the Schedule of
Easements in attached Plan 408590 Wellington Land Registry.

3.         Directing the District Land Registrar to discharge the memorandum on title 283771 Wellington Land Registry and the land is subject to s 241(2) of the Resource Management Act 1991.

4.         Directing  the  District  Land  Registrar  to  issue  separate  computer titles in terms of attached Plan 408590 Wellington Land Registry to the parties in respect of the application made by Dealing 794417.

[16]     Mrs Harley sent  a  copy  of  the  Court  orders  to  the  Registrar-General  on

22 February 2009 inviting the deposit of the plan and the issue of new computer registers.  On 20 February 2009 the Registrar-General refused to deposit the plan or issue the titles advising that in his view the RMA was a code in respect of the division of land and must be complied with accordingly.  He considered the orders of the Family Court could not overcome that situation.

Applicant’s case

[17]     The applicant’s case can be relatively simply expressed.   The applicant, as she was entitled to, applied for orders under s 23 of the PRA for orders pursuant to s 25.  Section 25 provides as follows:

25	When Court may make orders

(1)	On an application under section 23, the Court may— (a)	make any order it considers just—
(i)         determining the respective shares of each spouse or [[partner]] in the relationship property or any part of that property; or

(ii)       dividing the relationship property or any part of that property between the spouses or [[partners]]:

(b)        make any other order that it is empowered to make by any provision of this Act.

(2)        The Court may not make an order under subsection (1) unless it is satisfied,—

(a)	in the case of a marriage [[or civil union]],—

(i)         that the husband and wife [[or civil union partners]] are living apart (whether or not they have continued to live in the same residence) or are separated; or

(ii)       that   the   marriage   [[or   civil   union]]   has   been dissolved; or

(b)        in  the  case  of  a  de  facto  relationship,  that  the  de  facto partners no longer have a de facto relationship with each other; or

(c)        that 1 spouse or [[partner]] is endangering the relationship property or seriously diminishing its value, by gross mismanagement or by wilful or reckless dissipation of property or earnings; or
(d)	that either spouse or [[partner]] is an undischarged bankrupt. (3)	Regardless of subsection (2), the Court may at any time make any
order or declaration relating to the status, ownership, vesting, or
possession of any specific property as it considers just.

(4)        To  avoid  any  doubt,  but  without  limiting  subsection  (3),  if proceedings under this Act are pending, the Court, if it considers it appropriate in the circumstances, may make an interim order under that subsection for the sale of any relationship property, and may give any directions it thinks fit with respect to the proceeds.

(5)	This section is subject to the other provisions of this Act.

(6)	In proceedings commenced after the death of 1 of the spouses or
[[partners]], this section is modified by section 91.

[18]     Such an application can be made where the intention of the parties is estate planning and they do not come with s 25(2).  In this case the jurisdiction to make an order declaring an interest in the property by both parties came from s 25(3).  I note rather unsatisfactorily the original application made no reference to any statutory basis for the order.  However where the application is based on s 25(3) the ancillary orders in s 33 are still available (s 33(1)).  Here, the first order sought was that the Court vest half shares in the property at Boomrock Road which was relationship property but which was at that time solely in the name of Mrs Harley.  This order was properly made pursuant to s 25(1).

[19]     The applicant says s 33 of the PRA then permits ancillary orders to give effect to any orders made by the Court.  Of particular relevance are subs (1), (3)(e), (f) and (j) of the PRA:

33	Ancillary powers of Court

(1)        The Court may make all such other orders and give such directions as may be necessary or expedient to give effect, or better effect, to any order made under any of the provisions of sections 25 to 32 of this Act.

…

(3)	In particular, but without limiting the generality of subsections (1)
and (2), the Court may make any 1 or more of the following orders:

…

(e)	an order for the partition or vesting of any property:

(f)        in the case of property owned by 1 spouse or [[partner]], an order vesting the property in both spouses or [[partners]] jointly or in common in shares that the Court considers just:

…

(j)         an order for the transfer of land, or of any interest in land, including a lease, licence, or tenancy:

[20]     This  section  therefore  justified  the  order  for  partition  of  4 June.    The applicant  says  it  also  gave  jurisdiction  for  the  other  orders  (of  4 June  and
18 December) directing the Registrar-General to subdivide the land and issue titles to give effect to the partition order.

[21]     Section 41 provides for the registration of the orders made by the Family Court.   The applicant says this section entitled the Family Court to direct the subdivision of the land and the issue of the titles ([14]):

41	Registration of orders

(1)        Where an order made under this Act relates to any estate or interest in land, a copy of the order sealed with the seal of the Court shall, upon application by either of the parties and upon payment of the prescribed fee, be registered by the District Land Registrar or the Registrar of Deeds, as the case may be, or by the Mining Registrar in any case where the order relates to land comprised in a licence within the meaning of the Mining Tenures Registration Act 1962 that has not been registered under the Land Transfer Act 1952.

…

(4)        Where an order made under any of the provisions of this Act relates to any stocks, shares or other company securities, or to any other property  the  title  to  which  passes  upon  or  is  evidenced  by registration, the foregoing provisions of this section shall apply with all necessary modifications to such stocks, shares, securities or other property as if they were estates or interests in land.

[22]     Finally the appellant submits that if there is any conflict between the PRA

and the RMA then the PRA dominates by virtue of s 4A which provides:

4A	Other enactments to be read subject to this Act

Every enactment must be read subject to this Act, unless this Act or the other enactment expressly provides to the contrary.

[23]     The appellant says that in any event the RMA does not apply to the current circumstances.  The RMA is concerned to govern subdivisions of land to which the RMA applies.  The appellant’s case is that the RMA does not apply to any division of land authorised by the PRA.

[24]     The applicant’s argument is therefore in summary:

a)	the vesting of half shares of the land  in Mr and Mrs Harley was authorised by the Act (s 25);

b)	the partition of the property is in accordance with the PRA (s 33);

c)        the making of the orders relating to the division of the Boomrock Road property into lots, vesting particular lots in either Mrs Harley or Mr Harley, and directing the Registrar-General to issue new titles are all appropriate ancillary orders under the PRA (s 33, 41);

d)        although  the  RMA  provides  for  subdivision  of  land,  the  RMA  is subject to the provisions of the PRA (s 4A) and in any event, s 218 of the RMA is concerned with subdivision of land under the RMA not the PRA (as here).

[25]     The applicant’s case is, therefore, that the Registrar-General is obliged to register the orders of the Family Court and subdivide the land and issue the new titles.

Discussion

[26]     The orders sought by the appellant in her 4 April 2008 application were a division of the Boomrock Road property between her and her husband and “vesting half shares in the property in each of us”.  No objection could be taken to the grant of these orders.  They were authorised by s 25.

[27]     The third order sought partition of the land.  Again as a general principle no objection could be taken to an order for partition.  The Family Court is specifically empowered to make such an order (s 33(3)(e) of the PRA).

Partition orders and subdivision

[28]     The appellant’s case is that the essence of a partition order is the division of commonly held shares in a property into “separate” partitions.   The “classic statement” of the meaning and effect of a partition order is in E C Adams, (ed) Garrows Law of Real Property (5th ed, Butterworths, Wellington, 1961) which said:

Partition means the dividing up of the common estate into separate partitions so that each obtains his separate share in severalty.  Co-owners may agree amongst themselves to divide a division may be ordered by the Court.

[29]     In Patel v Premaphai (1954) AC 35 the Privy Council was considering a case from Fiji.  A Partition Act empowered the Court to make orders for partition.  There was also a Land Ordinance which governed the subdivision of land.

[30]     The Privy Council concluded that a decree for partition of a property and its division or subdivision were different matters.  A decree for partition could be made without an order for subdivision forming part of the decree.  Thus the Partition Act governed partition orders and the Land Ordinance governed the subdivision of land.

[31]     Thus the Court stressed the process involved two steps, firstly a partition of the land.  The Court said that this was “lawful and effective” in its own right.  The second step was the subdivision of the land, a separate question from partition.  By analogy the facts and principles of Patel have application in this case.

[32]     As Hinde McMorland and Sim said in Land Law in New Zealand (loose-leaf ed, Lexis Nexis) at 13-020:

The statutory restrictions on subdivision do not prohibit the making of an order for partition, as the land is not subdivided merely because an order for partition is made.  The partition order cannot be carried into effect by actual partition until the provisions of the statutes governing the subdivision of land have been complied with.

[33]     As I have observed the Family Court had express jurisdiction to make a partition order.  This required an identification of who owned what specific parts of the Boomrock Road property.   The parties identified the appropriate method by which individual parts of the Broomrock Road property could be identified as being owned by a particular spouse.  They divided the property into ten lots and allocated ownership of particular groups of lots to a particular spouse.   The purpose was to reflect the half share each in the property.  There seems no obvious reason why this would not be permitted under the PRA given  it is a direct consequence of the partition order.  Such an order by itself is not a subdivision nor does it follow that the issue of new titles must then occur.

[34]     And so the Family Court was empowered to make an order that the land would be divided into the ten lots and ownership of each lot identified.  This was the partition order.

[35]     The real question in this case, however, is whether having done that the Family Court was entitled then to direct the Registrar-General to issue titles and thus approve a subdivision for the combinations of particular lots as sought by the appellant.

[36]     I am satisfied the Family Court had no such power.  As the Privy Council in Patel said there are two quite distinct steps when the question of a partition and a subdivision of land, including the issue of new titles arises.  The first step is making the partition order.  In this case this was given effect to by identifying ten lots and allocating ownership of each lot to a particular spouse.  A second and quite separate step is the question of the subdivision of the land and the issue of new titles.

Section 33 – Ancillary orders

[37]     Section 33 did not empower the Family Court to sub-divide land and direct the issue of titles.   The PRA is concerned with the division of property of those whose relationships are covered by the Act not with the subdivision of land.  The RMA governs the subdivision of land.  The Family Court declared the interest each spouse had in the Boomrock Road land (the s 25 order) and it made the ancillary order, a partition order (s 33), identifying what particular parts of the land were owned by what spouse.  There its jurisdiction ended.

[38]     Section 33 gives the Family Court ancillary powers which, as subs (1) states, is to give “better effect” to any order made under (as relevant) s 25.  The partition order was as an ancillary order designed to give better effect to the equal sharing order under s 25.  The partition order was complete with the division of ownership of the ten lots.

[39]     The subdivision of land and the creation of separate titles is not the exercise of a power ancillary to any other order.   Nor is it necessary to give effect to the partition order.   A partition order is affected by the identification of ownership of particular parts of the land partition.  Here the individual lots.  If either party wanted to sell their partitioned share then an application to the Family Court for sale of the

whole property could be made.   If the sale was opposed the Family Court would apply appropriate principles to resolve the impasse.

[40]     As the Privy Council in Patel identified the subdivision of the land and the creation of separate titles is quite a different matter than the making of a partition order.  The exercise of the ancillary power given in s 33(3)(e) was complete once the partition order was made and the division of ownership of the ten lots declared. Section 33 authorised nothing further.

[41]     I am satisfied therefore that the Family Court simply had no power under s 33 or elsewhere in the PRA to subdivide the land and to direct the Registrar-General to issue titles.

Subdivision of land and issue of titles not what PRA “about”.

[42]     There is a second reason why the Family Court could not make an order for subdivision and issue titles.

[43]     Section 1C of the PRA identifies what that Act is about.  It states:

1C	What this Act is about

(1)        This Act is mainly about how the property of married couples [[and civil union couples]] and couples who have lived in a de facto relationship is to be divided up when they separate or 1 of them dies.

(2)        This Act applies differently depending on the length of the marriage between the husband and wife [[or the civil union between the civil union partners]] or the de facto relationship between the de facto partners:

(a)        in the case of marriages [[and civil unions]], special rules apply to marriages [[and civil unions]] of less than 3 years:

(b)        in the case of de facto relationships, this Act usually applies only when the de facto partners have lived together for at least   3   years,   but  it   may  apply  to   shorter  de  facto relationships in certain circumstances.

(3)        In general, the couple's property is to be divided equally between the couple.

[44]     The order for partition identifies how the property identified as relationship property is to be divided up.  As I have observed if the parties were dissatisfied with holding the property in the way identified, as owners of individual lots, then they could  seek  an  order  for  sale  of  the  whole  property  and  the  distribution  of  the proceeds accordingly.  Section 1C makes it clear the PRA is concerned with the law of how the property of couples is to be divided up.  It is not an Act concerned with the subdivision of land nor the creation of new titles.

[45]     Subdivision of land is the exclusive preserve of the RMA (save statutory exceptions).  The Court of Appeal in Horokiwi Holdings v The Registrar-General of Land [2008] NZCA 223 said the RMA was intended by Parliament to be a code for the subdivision of land.  In particular the Court said:

[16]      In terms of s 11 of the RMA no person may subdivide land within the meaning of s 218 of the RMA unless the subdivision is within one of the exceptions in that section such as where the transfer is effected under the Public Works Act 1981.

…

[29]      Section 11  of  the  RMA  is  quite  specific  in  its  exclusion  of transactions from the RMA mechanism of control over subdivisions and the present case does not appear in that list of exceptions.   Further, there are numerous examples in other statutory contexts where the RMA mechanism is  specifically  excluded  such  as  s 330(3)  of  the  Property  Law  Act 2007 which  provides  that  Part 10  of  the  RMA  does  not  apply  to  a  transfer, exchange or other disposition of land under s 328 relating to granting access to landlocked land.

[46]     And at [23] the Court agreed with the first instance Judge that:

[23]       Accordingly, the Judge concluded at [47] that “subdivision” under s 218 for the purposes of this case required:

(i)	The division of a continuous area of land;

(ii)	Whose boundaries are shown separately on a survey plan;

(iii)	That is prepared in a form suitable for deposit under the
Land Transfer Act 1952.

[47]     As the respondent has pointed out the original application on behalf of the Harleys to LINZ inviting the issue of titles (based on the order of the Family Court) recorded that what was lodged with LINZ was a subdivisional plan.

[48]     The PRA is designed to identify what property comes under the Act and how it is to be divided.  Ordering the subdivision of land and issue of new titles is not necessary for the purpose or practice of the PRA to be given effect to.  The RMA is concerned with the subdivision of land and the necessary statutory pre-requisites that must exist before a subdivision and the issue of new titles can take place.

[49]     Seen in that way the two statutes do not infringe each other’s jurisdiction and there  is  no  need  to  consider  s 4A  and  the  overriding  provisions  of  the  PRA. Interpreted  in  the  way  I  have  identified  the  statutes  are  in  harmony.    Most importantly s 33 does not authorise the Family Court to direct sub-division of land and the issue of new titles.

Registrar–General’s powers

[50]     The appellant’s case is that the RMA has no application to the facts of this case.   That Act, the appellant submits, is concerned only with applications to the Registrar-General for the issue of titles arising from the division of an allotment.  In this case there is no application.  There is, the appellant states, an order directing the Registrar-General to issue the titles.

[51]     This submission takes the authority to issue such a direction by the Family Court as a given.  In my view it is not.  I do not consider that Parliament has given the Family Court jurisdiction to give direction to the Registrar-General requiring him to subdivide land and issue new titles as I have previously observed.  Indeed it would be wholly illogical if they had done so.   The Family Court’s jurisdiction is not concerned with resource management matters and approvals for subdivisions.

[52]     The Registrar-General’s responsibilities under the RMA also make it clear why Parliament cannot have intended to give the Family Court the authority to approve subdivisions.  The Court of Appeal made it clear in Horokiwi that the RMA provides the statutory authority for subdivision of land.  Part 10 of the Act sets out what is intended to be a code governing the subdivision of land.  A subdivision is, as relevant here, a division of an allotment being a subdivision of a continuous area of land where boundaries are shown separately on the survey plan in a form suitable to

deposit under the Land Transfer Act.  This describes the subdivisional plan lodged with LINZ by the Harleys.  It is therefore a proposed subdivision and must comply with the RMA.

[53]     Part 10 of the RMA identifies a broad range  of responsibilities on those proposing to subdivide allotments both from the point of view of the applicant, the Registrar-General and the Local Authority.

[54]     For example, s 226 of the RMA provides as follows:

226	Restriction upon issue of certificates of title for subdivision

(1)        [The Registrar-General of Land] shall not issue a certificate of title for any land that is shown as a separate allotment on a survey plan (being a certificate issued to give effect to the subdivision shown on that survey plan), unless he or she is satisfied, after due inquiry, that—

(a)        The plan has been deposited in accordance with section 224 or has been approved by the Chief Surveyor for the purposes of section 228 and the provisions of section 228(2) have been complied with; or

(b)        The plan has been deposited in accordance with section 306 of the Local Government Act 1974 or was a Crown plan to which section 306(7) of the Local Government Act 1974 applied; or

[(ba)	The plan has been approved under Part 25 of the
Municipal Corporations Act 1954; or]

[(bb)	The  plan  has  been  approved  under  Part  2  of  the
Counties Amendment Act 1961; or]

[(bc)     The plan did not require the approval of the council under Part 2 of the Counties Amendment Act 1961 and was deposited under the Land Transfer Act 1952 after the said Part 2 came into force; or]

(c)	The plan has been deposited in accordance with the Unit
Titles Act 1972; or

(d)        The certificate of title is issued to enable effect to be given to any agreement for sale and purchase or agreement to lease or other contract to create an interest in land or a building or part of a building made before the commencement of this Act; or

(e)        The territorial authority has [given a certificate signed by the principal administrative officer or other authorised officer to the effect]—

(i)         That there is no district plan for the area to which the survey plan relates, and that the allotment is in accordance with the requirements and provisions of the proposed district plan; or

(ii)     That the allotment is in accordance with the requirements and provisions of the district plan and the proposed district plan (if any) for the area to which the survey plan relates; or

(iii)      That   the   allotment   is   in   accordance   with   a permission or permissions granted under Part 2 or Part 4 of the Town and Country Planning Act 1977.

(2)	Nothing in section 11 shall apply to the issue of a certificate of title pursuant to subsection (1).

[55]     Section 226 therefore prohibits the Registrar-General from issuing a new title for land unless he is satisfied of certain matters.  The Family Court can hardly waive compliance  with  such  a  statutory obligation.    This  illustrates  Parliament’s  clear intention that the Registrar-General of Land deals with title issue and subdivision.

[56]     Approval of the suggestion that Parliament intended to give the Family Court the authority to approve subdivisions and direct title issue whenever the land is owned by qualifying owners, would have the most extraordinary effect.  This would permit the wholesale subdivision of land throughout New Zealand unencumbered by the RMA or indeed any statutory restriction save the qualifying relationship by the owners under the PRA.  Clearly this could not have been intended by Parliament.

[57]     In summary, therefore, what was sought by the Harleys and ordered by the Family Court was a subdivision of land.  The Family Court did not have jurisdiction to order the subdivision of the Boomrock Road property nor the jurisdiction to order the Registrar-General to issue new titles for the land.  Thus, some of the orders of
4 June and all of the orders of 18 December were beyond its jurisdiction.  If the PRA is interpreted with this restriction on its jurisdiction then the Family Court is able to exercise its partition jurisdiction but without infringing the RMA authority over subdivision of land and the Registrar-General’s statutory responsibilities regarding the issue of titles.

[58]     The Family Court can make an order for partition.  It can reflect in the order for partition what parts of an individual title are owned by which spouse or partner. It  can  make  an  order  for  sale  of  the  partitioned  land  but  what  it  cannot  do  is subdivide the land and order the issue of titles or direct anyone else to do so.

[59]     The purpose of the PRA is not the subdivision of land and issue of titles but the division of property amongst those covered by the Act.  The purpose of Part 10 of the RMA is to control the subdivision of land and issue new titles to land.  Seen in this way, as the respondent said, the two Acts “mesh” seamlessly as intended by Parliament.  There is no conflict between the RMA and the PRA, thus s 4A of the PRA has no application.

[60]     Finally, when the Family Court proposes to make partition orders it may be useful to include as part of the orders a recitation that the orders are not orders for subdivision nor are they intended to be a direction of the Registrar-General to issue titles to land nor do they exempt the parties from compliance with any other statutory provisions relating to the subdivision of land and the creation of new titles to land.

[61]     The Registrar-General has substantiated the grounds of his refusal to issue title.  He was correct to do so.

[62]     The final issue I raised with counsel for the appellant was my concern that the  applicant,  in  applying  for  the  further  orders  from  the  Family  Court  (on
16 December 2008)  did  not  provide  the  Family  Court  with  a  copy  of  the Registrar-General’s letter to the applicant ([12], [13]).   This letter set out the Registrar-General’s position as regards the original orders of the Family Court and the action sought by the applicant.   The Registrar-General’s letter made clear his concern about compliance with the RMA.  It is likely if the Family Court Judge had been given a copy of that letter, that this information would have given pause to consider the impact of the orders sought on the RMA and the Registrar-General’s statutory obligations.   This letter should have been provided to the Court by the applicant.

Costs

[63]	Should the respondent seek costs memoranda should be filed within 14 days with the applicant having a further 14 days to respond.

Ronald Young J

Solicitors:
J R Burns, Crown Law, PO Box 2858, Wellington, email:  james.burns@crownlaw.govt.nz
C R Carruthers QC, PO Box 5241, Wellington, email: crc@crcarruthers.co.nz