Casey v Casey - [2018] NZHC 1930

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1081

[2018] NZHC 1930

UNDER the Land Transfer Act 1952

IN THE MATTER OF

an application for an order that a caveat not lapse

BETWEEN

CATHERINE MAY LOUISE CASEY

Applicant

AND

DAVID GREGOR CASEY and

GARY BRYCE CONWAY as trustees of the APOLLO 69 FAMILY TRUST

Respondents

Hearing: 31 July 2018

Appearances:

D Jaques for the Applicant

P M Webb for the Respondents

Judgment:

31 July 2018

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Legal Associates (D Jaques), Papatoetoe, Auckland, for the Applicant Denham Bramwell (P Webb), Manukau, for the Respondents

CASEY v CASEY [2018] NZHC 1930 [31 July 2018]

[1] Mrs Casey applies under s 145A of the Land Transfer Act 1952 for an order that a notice of claim under s 42 of the Property (Relationships) Act 1976 not lapse. The notice is lodged against the identifier for a two-hectare lifestyle property at Paremoremo, Auckland. The registered proprietors are her brother, Gary Bryce Conway, and her former husband, David Gregor Casey. They hold the property as trustees of the Apollo 69 Family Trust, which was established under deed dated 8 August 2014. A title search shows that the notice has been lodged against the interest of David Gregor Casey in the property. The actual notice has not been put in evidence, but the search copy is sufficient evidence that a notice of claim has been lodged.

[2] Mr and Mrs Casey married in 1995. There are two children of their marriage. Their marriage was dissolved on 15 May 2018 after a two-year separation. They bought the Paremoremo property in 2003 and took title in their own names. It was bare land. They built a house and lived in it as their family home.

[3] In October 2008, they established the Casey Family Trust. They settled the Paremoremo property on the trust. They are the settlors; they are also the trustees, as well as a Mr John Gray. The primary beneficiaries are Mr and Mrs Casey and their children, including any future children. The children are the final beneficiaries in that they take equally on the date of distribution. There are substitutionary provisions in the event of death. In the way of modern family trusts, there are discretionary powers to make distributions for maintenance, education and advancement, with powers to make distributions ahead of the distribution date, to add and exclude beneficiaries and to vary the trust deed. There is a power of resettlement. Mr and Mrs Casey were accordingly discretionary beneficiaries under the Casey Family Trust. Any benefits they might take under the trust turned on the trustees using powers under the deed to make distributions to them.

[4] In August 2014, the Apollo 69 Family Trust was established. Mr and Mrs Casey are the settlors. The trustees are Mr Casey and Mrs Casey's brother, Gary Conway. The final beneficiaries are the children of Mr and Mrs…

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 Casey v Casey

Details

AGLC: Casey v Casey [2018] NZHC 1930
Case: [2018] NZHC 1930
Decision Date: 31 July 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Catherine May Louise Casey applied for an order preventing the lapse of a notice of claim against the Paremoremo property, which was held by her former husband, David Gregor Casey, and her brother, Gary Bryce Conway, as trustees of the Apollo 69 Family Trust. The applicants sought to prevent the lapse of the notice of claim, which was registered against David Gregor Casey's interest in the property. The primary legal issue was whether David Gregor Casey had a caveatable interest in the property, which would allow Catherine May Louise Casey to lodge a notice of claim under the Property (Relationships) Act 1976.

The court found that David Gregor Casey did not have a caveatable interest in the property, as his ownership as a trustee did not give him any beneficial interest in the property. Furthermore, the trust deed did not provide for the settlors to become beneficiaries, and the potential for David Gregor Casey to become a beneficiary was not enough to give him an interest in the land. The court concluded that the notice of claim did not need to stay on the title, as Catherine May Louise Casey's rights were adequately protected without it. The court ordered the notice of claim to be removed from the property title and awarded costs to the respondents on a Category 2 basis.

Orders