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Andrew v McGinty

Andrew v McGinty

Case [2024] NZHC 1834 8 July 2024

Express Trust

Resulting Trust

Presumption of Advancement

Certainty of Intention

Certainty of Subject Matter

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2039

[2024] NZHC 1834

UNDER Part 18 of the High Court Rules 2016

BETWEEN

JENNIFER ANNE ANDREW

Plaintiff

AND

MATTHEW PATRICK MCGINTY

First Defendant

RACHEL HOLLEY MCGINTY
Second Defendant

REBECCA EMILY MCGINTY

Third Defendant

Hearing: 4–6 June 2024

Appearances:

T M Molloy for Plaintiff

S L McColgan for First and Second Defendants D J Rooke for Third Defendant

Judgment:

8 July 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 8 July 2024 at 12 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:
T M Molloy, Barrister, Auckland Spencer Legal, Auckland
S L McColgan, Barrister, Auckland Gibbs Mills Livingstone, Auckland

ANDREW v MCGINTY [2024] NZHC 1834 [8 July 2024]

Overview

[1] This dispute arises, following the breakdown of the marriage between the first defendant, Mr Matthew McGinty, and the third defendant, Ms Rebecca McGinty (referred to below by her maiden name Ms Crowe). The claim is brought by Mr Matthew McGinty’s mother, Ms Jennifer Andrew. The dispute relates to an interest claimed by Ms Crowe in a property at 22 Mareth Street, Panmure, Auckland (the Property). Ms Crowe has lodged a notice of claim against the Property asserting an interest pursuant to s 42(2) of the Property (Relationships) Act 1976 (PRA). The plaintiff seeks an order removing that notice of claim from the title and a declaration that the Property is held on trust for Ms Andrew as sole beneficiary.

[2] Legal title to the Property is held by Mr Matthew McGinty and the second defendant, his sister, Ms Rachel McGinty (Ms McGinty) as tenants in common in half-shares. Both the first and second defendants support their mother’s position.

[3] The issue in dispute is whether the Property is held subject to trust obligations put in place when the Property was first acquired in 2001. The plaintiff contends that her two children each agreed to hold title to the Property on an express trust or, alternatively, the plaintiff owns the entire beneficial interest in the Property on a resulting trust, in circumstances where the purchase money for acquiring it came entirely from the plaintiff and her husband, Mr Patrick McGinty (now deceased). Under Mr Patrick McGinty’s will, his estate (and therefore any interest he had in the Property) passed to Ms Andrew.

[4] In contrast, Ms Crowe claims that Mr Matthew McGinty and Ms McGinty each hold their half-shares beneficially, because the Property was gifted to them (supported by a presumption of advancement). Ms Crowe takes a similar position with the plaintiff’s ongoing investment in the Property, contending that Ms Andrew also gifted more than $300,000 spent on renovations and capital improvements to the Property.

[5] For the below reasons, I am satisfied that the Property has all along been held by Mr Matthew McGinty and Ms McGinty as bare trustees, and the plaintiff is now the sole beneficial owner of the…

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 Andrew v McGinty

Details

AGLC: Andrew v McGinty [2024] NZHC 1834
Case: [2024] NZHC 1834
Decision Date: 8 July 2024

CaseChat Overview and Summary

This case involves a dispute over the beneficial ownership of a property at 22 Mareth Street, Panmure, Auckland. The plaintiff, Jennifer Anne Andrew, is the mother of Matthew Patrick McGinty and Rachel Holley McGinty, who hold legal title to the property as tenants in common. The third defendant, Rebecca Emily McGinty, who is married to Matthew, has lodged a notice of claim against the property under section 42(2) of the Property (Relationships) Act 1976. Andrew seeks an order removing the notice of claim and a declaration that the property is held on trust for her. The key issues are whether an express trust was created when the property was purchased in 2001 and, if not, whether a resulting trust or gift arose. The court found that an express trust was indeed created, as the requisite certainties of intention, subject matter, and objects were established. The trust was manifested and proved in writing, satisfying statutory requirements. The court rejected the argument that the property was gifted, noting that there was no intention to make a gift and that the presumption of advancement was displaced by the evidence. As a result, the court ordered the removal of Rebecca McGinty’s notice of claim and declared that the property is held on trust for Jennifer Andrew. Costs are reserved for further agreement between the parties.

Orders