Legal Research
Cases
Batusov v Batusova

Batusov v Batusova

Case [2020] NZHC 1272 9 June 2020

Constructive Trust

Contribution to Property

Reasonable Expectation

Unconscionability

Institutional Constructive Trust

Unjust Enrichment

Property Law

Equity & Trusts

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-002769

[2020] NZHC 1272

IN THE MATTER OF Part 19 High Court Rules 2016

AND

of an application by EVGENY BATUSOV for orders pursuant to S 143 of the Land Transfer Act 2017 in respect of caveat claim 11474659.1

BETWEEN

EVGENY BATUSOV

Applicant

AND

YULIYA BATUSOVA

First Respondent

AND

MARTIN PHILIP DREW

Second respondent

Hearing: 19 May 2020

Appearances:

R J Thompson for the Applicant

No appearance for the First Respondent S Henderson for the Second Respondent

Judgment:

9 June 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 9 June 2020 at 2.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Henderson Reeves Connell Rishworth, Whangarei R J Thompson, Barrister, Auckland
Loughlin McGuire, Auckland

BATUSOV v BATUSOVA [2020] NZHC 1272 [9 June 2020]

Introduction

[1] Evgeny Batusov, also known as John Batusov, applies under s 143 of the Land Transfer Act 2017 for an order that the caveat (11474659.1) he registered in June 2019 against the certificate of title to the property at 8b Oban Road, Browns Bay, Auckland (Identifier NA91A/194 North Auckland) not lapse.

[2] Mr Batusov’s application is not opposed by the first respondent, Yuliya Batusova, who is Mr Batusov’s mother and the owner of a half-share in 8b Oban Road. However, the application is opposed by the second respondent, Martin Drew, who is Ms Batusova’s former husband and the owner of the other half-share in 8b Oban Road.

[3] Mr Batusov asserts his interest in the land on the basis of a constructive trust which he says arises as a result of an unwritten agreement between himself, his mother and Mr Drew to form a joint venture to invest in property. Mr Drew denies there was any such agreement. Ms Batusova supports her son’s account.

[4] Mr Batusov has filed a substantive proceeding in the High Court to enforce the asserted joint venture and seeks to maintain the caveat pending the outcome of that proceeding.

Relevant background

[5] In 2001, Ms Batusova and Mr Batusov emigrated to New Zealand from Russia. Mr Batusov would have been about 14 years old at the time.

[6] In 2003, Ms Batusova commenced a relationship with Mr Drew. She and Mr Drew, as well as Mr Batusov, lived together from around this time. Ms Batusova and Mr Drew married in 2007.

[7] Mr Drew, Ms Batusova and Mr Batusov lived initially at 74 Oaktree Avenue, Browns Bay, which had been the matrimonial home of Mr Drew and his former wife. Subsequently, Mr Drew and Ms Batusova, along with Mr Batusov and Mr Drew’s

parents, moved to 35 Oaktree Avenue that was purchased, at least in part, by Mr Drew’s parents.1

[8] In 2006, Mr Drew’s parents moved to a retirement home and Mr Drew and Ms Batusova purchased the interest of Mr Drew’s parents in 35 Oaktree Avenue, with financial assistance from…

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 Batusov v Batusova

Details

AGLC: Batusov v Batusova [2020] NZHC 1272
Case: [2020] NZHC 1272
Decision Date: 9 June 2020

CaseChat Overview and Summary

Evgeny Batusov applied to the High Court for an order that a caveat he had lodged against the title to the property at 8b Oban Road, Browns Bay, Auckland not lapse. Batusov's application was not opposed by Yuliya Batusova, his mother and co-owner of the property, but was opposed by Martin Drew, Batusova's former husband and co-owner of the property. Batusov sought to maintain the caveat pending the outcome of a substantive proceeding he had filed against Batusova and Drew in which he sought to enforce a joint venture agreement he claimed to have existed between himself, Batusova and Drew to invest in property. Drew denied there was any such agreement. Batusova supported Batusov's account. The Court held that while there were significant doubts about the strength of Batusov's claim to a joint venture arrangement, it was reasonably arguable that Batusov had an interest in 8b Oban Road on the basis of a constructive trust and it was not patently clear that the caveat could not be maintained. The Court also held that it should exercise its discretion to remove the caveat and that Batusov's interests could be adequately protected by an order that one third of the proceeds of sale of 8b Oban Road be retained on trust pending the outcome of Batusov's substantive proceeding. Accordingly, the Court ordered that the caveat not lapse.

Orders