Brownsea v Malit - [2019] NZHC 1244

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2018-443-35

[2019] NZHC 1244

BETWEEN
BARRINGTON STANLEY BROWNSEA

Plaintiff

AND

JENITH SAMBALILO MALIT

Defendant

Hearing: 31 May 2019

Appearances:

S Hughes QC for Plaintiff No appearance for Defendant

Judgment:

31 May 2019

JUDGMENT OF GRICE J

(Formal proof)

Background1

[1] In 2014 Mr Brownsea and Ms Malit were in a relationship. They both lived in Christchurch. At one stage it appeared that the relationship might develop into something permanent. That did not eventuate.

[2] While Mr Brownsea and Ms Malit were seeing each other Mr Brownsea decided to move to Hawera. He had sufficient money to purchase a property at 12 George Street, Hawera. At that stage, while thinking there was a future in their relationship, Mr Brownsea arranged for the property to be registered in both their names.

[3]The relationship did not survive the move. Mr Brownsea has remarried.

1 This decision was delivered orally on 31 May 2019. The written form has been appropriately edited and footnoted before distribution.

BROWNSEA v MALIT [2019] NZHC 1244 [31 May 2019]

[4]He now wants the property to be vested in him alone.

Legal position

[5] Mr Brownsea has filed proceedings claiming a resulting trust in his favour in the property. The basis for a resulting trust is the trust property results back to the settlor in a situation where the original proprietor had no intention to divest a beneficial interest in it. This the gives rise to the trust. Resulting trusts arise at the time a transaction occurs and not constituted by behaviour occurring after the time of the transaction.

[6] In considering the basis for resulting trusts, the Court of Appeal in Crampton- Smith v Crampton-Smith cited Lord Browne-Wilkinson in Westdeutsche as follows: 2

Where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B; the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a presumption, which presumption is easily rebutted either by the counter-presumption or by direct evidence of A’s intention to make an outright transfer …

[7]The Court continued:

[37] Where the presumption applies, it is generally regarded as having dispositive effect unless the presumption is rebutted. This is explained by Farwell LJ in The Venture:³

“On its being proved that Percy Stone had advanced a certain part of the purchase money, the presumption of law arose that he was beneficially entitled to a corresponding share in the yacht. It was for the plaintiff to displace that presumption by bringing evidence to 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 Brownsea v Malit

Details

AGLC: Brownsea v Malit [2019] NZHC 1244
Case: [2019] NZHC 1244
Decision Date: 31 May 2019

CaseChat Overview and Summary

Barrington Stanley Brownsea brought an action against Jenith Sambalilo Malit in the High Court of New Zealand, New Plymouth Registry, seeking a resulting trust over a property at 12 George Street, Hawera, and repayment of a loan of $20,000. The dispute arose from a relationship between the parties that began in 2014, during which Mr Brownsea purchased the property in both their names. The relationship did not endure, and Mr Brownsea sought to have the property vested in his sole name and repayment of the loan. The defendant, Ms Malit, did not appear or respond to the proceedings.

The court had to determine whether a resulting trust existed in favour of Mr Brownsea over the property and whether he was entitled to repayment of the loan. The existence of a resulting trust hinges on the absence of an intention to make a gift of the beneficial interest in the property. The court applied the presumption that where a person pays for the purchase of property that is vested in their name or in joint names, there is a presumption that the purchaser did not intend to make a gift to the other party. This presumption can only be rebutted by counter-presumption or direct evidence of an intention to make an outright transfer.

The court found that Mr Brownsea had paid the full purchase price of the property, and there was no evidence that Ms Malit contributed any funds. The court concluded that the presumption of a resulting trust in favour of Mr Brownsea was not rebutted. Consequently, the property was vested in Mr Brownsea. Additionally, the court determined that Mr Brownsea was entitled to repayment of the $20,000 loan, as there was no evidence of an agreement that the payments were not to be repaid. The court ordered that the interest in the property be vested in Mr Brownsea, and he be granted judgment for the sum of $20,000, along with an order for costs.

Orders