Albon v Albon - [2014] NZHC 1490

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-1238 [2014] NZHC 1490

IN THE MATTER OF the Declaratory Judgments Act 1908

BETWEEN

MARK STEPHEN ALBON Plaintiff

AND

DARCY CHARLES ALBON Defendant

Hearing: 26-28 May 2014

Counsel:

K R Smith for Plaintiff
C J Tennet for Defendant

Judgment:

30 June 2014

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
4.30 pm on the 30th day of June 2014.

Solicitors: P C Gilbert for Plaintiff
F J Handy for Defendant

ALBON v ALBON [2014] NZHC 1490 [30 June 2014]

Background

[1] The plaintiff and the defendant, Mark and Darcy Albon, are two of the four sons of Vivian and Margaret Albon. The other two sons are Jeffrey and Michael. For convenience, and intending no disrespect, I refer to all members of the Albon family by their Christian names.

[2] These proceedings concern a dispute between Mark and Darcy about the ownership of a property at Carey Street, off Holloway Road, Aro Valley, Wellington. The property is about 1.6 hectares. Much of it is in bush and is zoned as conservation land. Some of it is zoned as outer residential land.

[3] Prior to 1971 Vivian owned, as tenant in common in equal shares with Mr Elwyn Williams, an interest in the Carey Street property. They owned just under a half share in the land. The remaining interest, just over a half share, was owned by the trustees of the Adams Trust. There was apparently, as between Messrs Albon and Williams on the one hand and the Adams Trust on the other, an informal arrangement under which each of these two groups occupied separate areas of the land equivalent to their proportionate share in the whole. The title was however not formally subdivided, so that each owned an undivided interest in the whole. The Albon family lived in a house on the land informally allocated to the Albon/Williams share. Mark and Darcy were at that stage still living at home with their parents.

[4] The land was taken in 1971 under the Public Works Act 1928 for university purposes. The Albon family moved to Lower Hutt. The land was not in fact used for university purposes and it had to be offered back to the original owners. There is a suggestion in the evidence that the decision that it was not required for university purposes was taken as long ago as 1978. However, the first advice that an offer back would be made was a letter to Vivian dated 6 May 1999. A formal offer pursuant to s 40 of the Public Works Act 1981 was made by the Crown in March 2000 to Vivian Albon and Elwyn Williams of their former interest in the land. They apparently counter-offered at a lower price, but that counter offer was not accepted by the Crown, so no contract then eventuated.

[5] The Albon family remained interested in acquiring the land and expected that a further offer would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Albon v Albon

Details

AGLC: Albon v Albon [2014] NZHC 1490
Case: [2014] NZHC 1490
Decision Date: 30 June 2014

CaseChat Overview and Summary

The case of Albon v Albon involved a dispute between the plaintiffs, Mark Albon, and the defendants, Darcy Albon, regarding the ownership of a property at Carey Street, Aro Valley, Wellington. The property, which was taken by the Crown in 1971 under the Public Works Act 1928, was later offered back to the original owners. Mark Albon acquired the property from Vivian Albon and Doreen Williams in 2008, while Darcy Albon lodged a caveat against the property in 2009, claiming that Mark held half of the property as a constructive trustee for him or was estopped from denying that he was buying the property for both of them.

The court considered whether Mark had become a constructive trustee of the legal estate he acquired, or whether he was bound by an estoppel in respect of that legal estate. The court held that the legal title which Mark acquired from Vivian and Doreen was not impressed with a trust in favour of Darcy which was binding on him when Mark acquired his interest in the property. Furthermore, the court found that there was insufficient evidence to establish that Mark and Darcy by their words or conduct formed a common intention, or that Mark made a representation to Darcy that they would jointly own the property.

The court concluded that Darcy's counterclaim must fail, and ordered that the caveat be removed. The court also reserved leave to Mark to apply for any other order necessary to give effect to that order. The court further reserved leave to the parties to file memoranda if any costs issues arise.

Orders