Carr v Whitfield - [2025] NZHC 743

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2408 [2025] NZHC 743

BETWEEN
MELISSA RACHEL CARR

Plaintiff

AND

LEIGHTON GLEN WHITFIELD and WHITFIELD TRUSTEE LIMITED

(as trustee of the L N TRUST) Defendants

Hearing: 17 March 2025

Appearances:

Kate Eastwood for the Plaintiff

M Brugeyroux for the Defendants

Judgment:

4 April 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application to set aside defendant’s appearance under protest to jurisdiction]

This judgment was delivered by me on 4 April 2025 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
K3 Legal (Edwin Morrison/Kate Eastwood), Auckland, for the Plaintiff
McVeagh Fleming (Marisa Brugeyroux/Craig Andrews), Auckland, for the Defendants

CARR v WHITFIELD [2025] NZHC 743 [4 April 2025]

Introduction

[1] Ms Melissa Carr (Ms Carr) applies to set aside a notice filed by the defendants, Mr Leighton Whitfield (Mr Whitfield) and Whitfield Trustee Ltd (WTL), as trustees of the L N Trust (the Trust) protesting the jurisdiction of the High Court to hear and determine her application for summary judgment against the defendants.

Background

[2] Ms Carr and Mr Whitfield met around March 2022. Shortly after, they began a de facto relationship which continued until their separation in late May 2024.

[3] When Ms Carr and Mr Whitfield met, they each owned houses. Ms Carr owned a property at 7 Karaka Street, Helensville (Karaka Street) and Mr Whitfield lived in a house at 47 Shuttleworth Place, Manly, Whangaparaoa (the Property), owned by the Trust.

[4] Ms Carr claims that between November 2022 and May 2024, she loaned a total sum of $539,642.60 to the Trust (the loan funds), comprising the following alleged loans:

(a)An amount of $308,030 used to repay a loan held in the name of the Trust advanced on 20 November 2023;

(b)contributing to alterations, additions and repairs to the Property, totalling $205,287.60; and

(c)making mortgage repayments towards the mortgage held by the Trust, totalling $26,325.

[5] Ms Carr says that, despite demanding repayment of the loan funds, the defendants have failed to repay it. Accordingly, on 11 September 2024, Ms Carr filed a statement of claim and an interlocutory application seeking summary judgment on her claim against the defendants.

[6] On 6 November 2024, the defendants filed an appearance under protest to jurisdiction in relation to Ms Carr’s claim.

Ms Carr’s application to set aside the defendants’ appearance

[7]Ms Carr now applies to the Court for orders that:

(a)the defendants’ appearance under protest to jurisdiction dated 6 November 2024 be set aside; and

(b)the defendants pay her costs and disbursements of and incidental to her application.

[8]The grounds on which Ms Carr seeks the above orders are, in summary:

(a)the loan funds that Ms Carr advanced to the defendants were applied towards the Property, which is registered to the defendants;

(b)the defendants have acknowledged in correspondence that the loan funds were advanced…

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 Carr v Whitfield

Details

AGLC: Carr v Whitfield [2025] NZHC 743
Case: [2025] NZHC 743
Decision Date: 4 April 2025

CaseChat Overview and Summary

The case of Carr v Whitfield, heard by the High Court of New Zealand, Auckland Registry, revolves around a dispute between Ms Melissa Carr and the defendants, Mr Leighton Whitfield and Whitfield Trustee Limited (WTL), concerning the repayment of funds allegedly loaned by Ms Carr to the Trust. Ms Carr filed a statement of claim and an interlocutory application for summary judgment, seeking repayment of the loan funds amounting to $539,642.60. The defendants filed an appearance under protest to jurisdiction, which Ms Carr now seeks to set aside. The court was required to determine whether the High Court had jurisdiction over Ms Carr’s claim for the recovery of the alleged loans or whether the true nature of her claim was an application for the division of relationship property, which would fall under the exclusive jurisdiction of the Family Court as per the Property (Relationships) Act 1976 (PRA).

The court found that the High Court had jurisdiction over Ms Carr’s claim. The reasoning included the significant body of evidence supporting Ms Carr’s assertion that the payments to the Trust were intended as loans, as acknowledged by the defendants. The court also noted that even if the PRA applied, no application had been made under the Act, meaning the High Court retained jurisdiction. The court distinguished the case from Belle v Pearsall, where the matter involved the proceeds of the sale of a former family home, which is covered by the PRA. The court determined that the defendants' assertion that the payments were contributions to the de facto relationship was not credible, given the evidence of the parties' intentions and correspondence regarding the loans. Consequently, the court granted Ms Carr’s application to set aside the defendants' protest to jurisdiction and directed the parties to attempt to agree on costs.

Orders