Auton v Auton - [2020] NZHC 940

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000144

[2020] NZHC 940

BETWEEN
ANDREW MYERS AUTON

Applicant

AND

VALERIE BEATRICE AUTON

Respondent

Hearing: 4 May 2020

Appearances:

P N Allan for Applicant

H A Evans and S B Henry for Respondent

Judgment:

7 May 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 7 May 2020 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

AUTON v AUTON [2020] NZHC 940 [7 May 2020]

The application

[1] The applicant applies to sustain a caveat he lodged against a property at 47 Aorangi Road, Christchurch (Aorangi Road). The respondent (Mrs Auton) is the registered proprietor of Aorangi Road and the applicant is her son. The applicant lodged the caveat on the basis that on around 1 August 2015 there was a concluded oral agreement between him and Mrs Auton to transfer the property to him for valuable consideration and there have been sufficient acts of part performance of the agreement. Alternatively, he asserts that Mrs Auton holds the property for him pursuant to a constructive trust.

[2]Mrs Auton opposes the application on the bases:

(a)there was no concluded agreement for the transfer of the property;

(b)there have been no acts of part performance; and

(c)the property is not held upon a constructive trust for the applicant.

[3] The application was heard under urgency as Aorangi Road has been sold with settlement on 8 May 2020. Due to the COVID-19 pandemic restrictions, Mrs Auton’s affidavit was not sworn in accordance with r. 9.73 High Court Rules. I make an order that her affidavit of 16 April 2020 has been accepted for filing and may be used in this proceeding under r 9.73(4) High Court Rules,1 the requirements of r 9.73(5) having been satisfied.

Background

[4] Mrs Auton was the sole shareholder and director of Check Point Trailers Ltd (Check Point). Check Point acquired Aorangi Road in February 2002. Aorangi Road contains both a house and a cottage. The cottage was built by Mrs Auton’s parents who lived there until they both passed away.

1 As amended by r. 17 High Court (COVID-19 Preparedness) Amendment Rules 2020.

[5] In April 2007, Mrs Auton and her husband (the applicant’s father, who I will refer to as Mr Auton) purchased 14 Exeter Street, Merivale (Exeter Street) for
$550,000 and undertook renovations to it.

[6] In around early 2009, the applicant returned to New Zealand from the United Kingdom, where he had been living, with his then partner. Mr and Mrs Auton sold Exeter Street to him. The sale price was $460,000. The applicant obtained a mortgage for $360,000 and the balance of $100,000 was left owing to Mr and Mrs Auton under a deed of acknowledgment of debt and agreement to mortgage of 9 May 2009 (the debt). The applicant became the registered owner of Exeter Street on 1 May 2009.

[7] Exeter Street was badly…

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 Auton v Auton

Details

AGLC: Auton v Auton [2020] NZHC 940
Case: [2020] NZHC 940
Decision Date: 7 May 2020

CaseChat Overview and Summary

The case of Auton v Auton involved an application by the son, Andrew Myers Auton, to sustain a caveat he had lodged against a property at 47 Aorangi Road, Christchurch, owned by his mother, Valerie Beatrice Auton. The son sought to either enforce an oral agreement for the property's transfer or to establish a constructive trust over the property. The primary legal issues revolved around whether there was a concluded oral agreement for the property transfer, if there had been sufficient acts of part performance, and whether a constructive trust existed.

The court found that there was no concluded agreement for the transfer of Aorangi Road, as the son's claims were unsubstantiated and incomplete. The court highlighted that the son's evidence was argumentative, contained hearsay, and lacked clarity on essential terms such as consideration and timing. Additionally, the court ruled that the doctrine of part performance could not be applied as there was no enforceable contract. Finally, the court dismissed the son's claim for a constructive trust, noting that he had made no significant contributions to the property's acquisition or maintenance.

Consequently, the court dismissed the son's application and ordered the lapse of the caveat. The court reserved the decision on costs pending a resolution between the parties, with the option for further submissions if necessary.

Orders