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Cooper v Cooper

Cooper v Cooper

Case [2023] NZHC 1403 7 June 2023

Institutional Constructive Trust

Unconscionability

Causation

Admissibility of Evidence

Limitation Periods

Specific Performance

Property Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1956 [2023] NZHC 1403

IN THE MATTER of an originating application for an order that caveat not lapse under s 143 of the Land Transfer Act 2017

BETWEEN

TALAMATAONE ELEANOR COOPER

Applicant

AND

TE KURA INGA TAU COOPER

First Respondent

EPHRAIM COOPER and RICHARD SHORTLAND COOPER

Second Respondents

Continued Overleaf

Hearing:
24 February 2023, further memoranda received 28 February 2023

and 2 March 2023

Counsel:

MG Locke and SK Hartley for the Applicant MH Donovan for the Respondents

Judgment:

7 June 2023

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 7 June 2023 at 12.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

TALAMATAONE ELEANOR COOPER v TEKURAINGATAU COOPER [2023] NZHC 1403 [7 June 2023]

CIV-2022-404-1938

IN THE MATTER of an application for a court order to remove a
caveat against dealings under ss 142 and 143(3)(a) and 148 of the Land Transfer Act 2017

BETWEEN THE TRUSTEES OF THE
TEKURAINGATAU COOPER FAMILY
TRUST and the GEORGE COOPER FAMILY TRUST
First Applicant
TEKURAINGATAU COOPER in her capacity as settlor, trustee and primary beneficiary of the Tekuraingatau Cooper Family Trust and trustee by survivorship and primary beneficiary of the George Cooper Family Trust
Second Applicant
RICHARD SHORTLAND COOPER in his
capacity as trustee of the Tekuraingatau Cooper Family Trust
Third Applicant
EPHRAIM COOPER in his capacity as trustee of the Tekuraingatau Cooper Family Trust and the George Cooper Family Trust
Fourth Applicant

AND TALAMATAONE ELEANOR COOPER
First Respondent
MORTLOCK McCORMACK LAW
Second Respondent

Solicitors/Counsel:
Mortlock McCormack Law, Christchurch James Gavin Donovan, Auckland
M Locke, Barrister, Auckland

Case Officer: Divya Ojha

Introduction [1]

Issues [13]

Legal principles—application that caveat not lapse [15]

Preliminary issue—admissibility of documents  [20]
Factual background  [24]
Is it reasonably arguable that an institutional constructive trust arises in this case?     [35]
Has Eleanor made contributions direct or indirect to the Property in question?
[42]

Is it reasonably arguable that the applicant had an expectation of an interest in the Property?  [53]
Is it reasonably arguable that Eleanor’s expectation was a reasonable one?     [58]
Is it reasonably arguable that the respondent should expect to yield the interest to
the applicant?  [70]

Conclusion on whether institutional constructive trust reasonably arguable [79] Is the description of the interest on the caveat sufficiently certain? [80] Should the caveat have identified the extent of the interest? [84]

Was the application for the caveat not to lapse filed in time?  [86]
Factual Summary  [91]
Relevant Provisions  [94]
Filing fee waiver  [108]
Discussion  [111]
Further directions  [113]
Result  [115]
Costs  [119]

Introduction

[1] Ms Talamataone Eleanor Cooper (Eleanor)1 has applied for an order that the caveat that she lodged against the title to a property in Lough Bourne Drive, Pukekohe (Property) not lapse.

[2] The registered proprietors of the Property have also filed an application that the same caveat lapse, together with an application for an…

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 Cooper v Cooper

Details

AGLC: Cooper v Cooper [2023] NZHC 1403
Case: [2023] NZHC 1403
Decision Date: 7 June 2023

CaseChat Overview and Summary

This case involves an application for an order that a caveat not lapse under section 143 of the Land Transfer Act 2017. Talamataone Eleanor Cooper (Eleanor) lodged a caveat against the title to a property in Lough Bourne Drive, Pukekohe (Property) to claim a beneficial interest in the land. The registered proprietors of the Property, Tekura Inga Tau Cooper, Ephraim Cooper, and Richard Shortland Cooper (respondents), filed an application that the caveat lapse and an application for an order for compensation for lodging a caveat without reasonable cause. The primary issue in this case is whether it is reasonably arguable that an institutional constructive trust arises in this case, requiring the four elements set out in Lankow v Rose to be met.

The court found that it is reasonably arguable that each of the four elements for an institutional constructive trust will be able to be established by Eleanor. The court also found that the description of the interest on the caveat was sufficiently certain and that the caveat was filed in time. The court extended the time for filing the fee waiver form and granted Eleanor's application for the caveat not to lapse on the condition that proceedings are filed and served within 40 working days to establish her interest and are progressed diligently. The respondents' application for caveat to lapse and the application for compensation were declined. Eleanor is entitled to costs, and the parties are asked to confer and try to agree on costs with memoranda to be filed only if necessary.

Orders