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Bell v Bell

Bell v Bell

Case [2022] NZHC 1388 14 June 2022

Standing

Institutional Constructive Trust

Contributions

Reasonable Expectation

Unconscionability

Caveat

Property Law

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002415

[2022] NZHC 1388

UNDER Land Transfer Act 2017, s 143

IN THE MATTER OF

An application for an order that caveat not lapse

BETWEEN

WILLIAM JEFFREY BELL as the

administrator of the late JEFFREY

REGINALD BELL, HOLLIE MARIE BELL and MICHAEL PATRICK BELL

Applicants

AND

REGINALD PATRICK BELL and JOHN

MURU WALTERS as the trustees of the BELAYR FAMILY TRUST

Respondents

Hearing: 25 May 2022

Appearances:

N W Woods for Applicants

S L Cogan and M G Beresford for Respondents

Judgment:

14 June 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 14 June 2022 at 2.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………….

BELL v BELL [2022] NZHC 1388 [14 June 2022]

Introduction

[1] These are caveat proceedings.1 The property at issue2 on Tara Road, Mangawhai, is owned by the respondent trustees, Reginald Bell and John Walters.3 Reginald is the grandfather of the applicants, William, Hollie and Michael Bell.

[2] Jeffrey Bell was the son of Reginald and the father of the applicants. He died intestate in 2021. As the next of kin, the applicants lodged a caveat on the title to the Property on 9 September 2021 contending that Jeffrey had an institutional constructive trust over the Property on the basis of contributions he made, both financial and non- financial, over a lengthy 20-year period. Reginald and Jeffrey lived on the Property. The applicants rely upon the principles in Lankow v Rose4 in support of their claim for a beneficial interest in the Property.

[3] The caveat was lodged prior to the grant of letters of administration. Those letters of administration were applied for by William after the date of lodging the caveat and granted to him on 4 February 2022.

[4] The trustees say that the caveat at issue suffers from a fatal flaw; no caveatable interest existed at the time the caveat was lodged, and it must accordingly be removed. The trustees rely upon the principle that the next of kin of a deceased who dies intestate has no caveatable interest in the property of the deceased until the estate has been fully administered.5

[5] The applicants dispute the challenge to their standing. They rely upon the retrospective application of s 24(2) of the Administration Act 1969. That section provides that the title of every administrator to any part of the deceased person’s estate relates back to and is deemed to have arisen immediately upon the death of the deceased person.

1      Land Transfer Act 2017, s 143.
2      The Property, being Lot 1 Deposited Plan 559883, Certificate of Title identifier 986983 (North Auckland).
3      The trustees.
4      Lankow v Rose [1995] 1 NZLR 277 (CA).
5      Re Savages Caveat [1956] NZLR 118 (SC); Wakenshaw v Wakenshaw [2017] NZCA 252.

[6]The critical issues I must determine are twofold:

(a)Do…

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 Bell v Bell

Details

AGLC: Bell v Bell [2022] NZHC 1388
Case: [2022] NZHC 1388
Decision Date: 14 June 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the applicants, William, Hollie, and Michael Bell, sought to sustain a caveat over a property owned by the respondents, Reginald Patrick Bell and John Muru Walters, trustees of the Belayr Family Trust. The applicants, as the next of kin of the deceased Jeffrey Bell, claimed an institutional constructive trust over the property based on Jeffrey's contributions to the property over a 20-year period. The respondents argued that the caveat was improperly lodged as the applicants lacked a caveatable interest until the estate was fully administered.

The court first considered whether the applicants had standing to lodge the caveat. The applicants argued that section 24(2) of the Administration Act 1969, which provides that an administrator's title to the estate relates back to the deceased person's death, retroactively validated their standing. The court found that it was reasonably arguable that section 24(2) operated retrospectively to cure any deficiency in the applicants' standing, particularly given that letters of administration had since been granted to William.

Next, the court examined whether the applicants had established a reasonably arguable claim for an institutional constructive trust. The court held that the applicants had put forward a case meeting the threshold for a reasonably arguable claim. While the trustees challenged the veracity of the applicants' evidence, the court found that the applicants' evidence met the required elements of a constructive trust claim, including contributions to the property, a reasonable expectation of an interest, and unconscionability. The court noted that the weight and significance of these elements were for trial.

The court granted the application to sustain the caveat, ordering that it not lapse pending further order of the court, subject to the applicants filing substantive proceedings within 20 working days. The court also awarded the applicants costs on a 2B basis plus disbursements.

Orders