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 DefendantREBECCA 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…
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