Buxton v Buxton - [2017] NZHC 131

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000855 [2017] NZHC 131

IN THE MATTER of the Land Transfer Act 1952

AND

IN THE MATTER

of an application to sustain a caveat

BETWEEN

TERRANCE GEORGE BUXTONE Applicant

AND

JILLIAN GALE BUXTON AND JOHN EDWARD BUTLER

Respondents

Hearing: 2 February 2017

Appearances:

Applicant in person
H D P van Schreven for Respondents

Judgment:

10 February 2017

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

Introduction

[1] The applicant, Mr Buxtone,1 and the first-named respondent, Mrs Buxton, married in December 1969, and remain married, though they are now estranged. For much of the time since 1996 they have lived in a house at 60 Andover Street, Christchurch. The house is now owned by a trust called Trust 60 which was created by deed dated 19 December 2005. Mrs Buxton and the second-named respondent, Mr J E Butler, are the trustees of Trust 60 and are the registered proprietors of the property.

[2] On 17 June 2016 Mr Buxtone lodged against the title to the house a notice of claim of an interest pursuant to s 42(2) of the Property (Relationships) Act 1976

1 Mr Buxtone changed his name from Buxton recently.

BUXTONE v BUXTON AND BUTLER [2017] NZHC 131 [10 February 2017]

(PRA). On 18 August 2016 the Registrar General of Land gave notice to Mr Buxtone of an application to lapse the notice. Mr Buxtone applies for an order that the notice be sustained and not lapse.

[3] The form of the notice lodged by Mr Buxtone provides for a statement to be given of the way in which Mr Buxtone says he derives an interest in the property from the registered proprietor. On this point he simply states that he is the husband of Jillian Gale Buxton. In the portion of the document titled “Relationship Details”, Mr Buxtone states that under the PRA, “an interest is claimed by virtue of the marriage with the above spouse or partner”, this being a reference to Mrs Buxton.

[4] In his application Mr Buxtone relies on two principal grounds. First, he says he has an interest in the property by virtue of his marriage to Mrs Buxton. Secondly he says that although Mrs Buxton and Mr Butler are trustees of Trust 60, the owner of the property, “by virtue of the marriage to the applicant, the applicant has a sustainable interest in the land”. There is further reference to notice to lapse the caveat being improperly given as it was signed by one trustee only, but this point was not pursued and there is evidence before the Court that the notice was given on behalf of both trustees.

[5] The trustees oppose the application. The thrust of their opposition is that they own the property as trustees of Trust 60, that it is not and never has been relationship property to which the PRA applies, that since the property was first purchased by Alpine Springs at the beginning of 1994 it has been owned by…

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 Buxton v Buxton

Details

AGLC: Buxton v Buxton [2017] NZHC 131
Case: [2017] NZHC 131
Decision Date: 10 February 2017

CaseChat Overview and Summary

In Buxton v Buxton, the High Court of New Zealand was tasked with deciding whether a notice of claim of an interest in a property under the Property (Relationships) Act 1976 (PRA) could be sustained. The applicant, Mr Buxton, claimed an interest in a property owned by a trust, Trust 60, on the basis of his marriage to Mrs Buxton, one of the trustees of Trust 60. The trustees opposed the application, arguing that the property had never been owned by either Mr Buxton or Mrs Buxton personally, and that Mr Buxton had divested himself of any interest in the property. The court had to determine whether Mr Buxton had a reasonably arguable case for an interest in the property under the PRA.

The court found that Mr Buxton had not demonstrated an arguable case for an interest in the property under the PRA. The court held that Mr Buxton had divested himself of any interest in the property through his actions, and that the trust deed limited Mrs Buxton's powers in a way that made it impossible for her to take steps to give herself both legal and beneficial ownership of the trust capital. The court also found that there had not been a disposition of property in terms of ss 44 and 44C of the PRA, and that Mr Buxton's claim under a constructive trust was not an interest "pursuant to" the PRA as required by s 42(1). The application was dismissed, and Mr Buxton was ordered to pay costs to the trustees on a 2B basis plus disbursements.

Orders