Cowan v Cowan - [2021] NZCA 463

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA391/2021
[2021] NZCA 463

BETWEEN	CHRISTINE MARAMA COWAN First Appellant TE RAHUI JOHN COWAN Second Appellant
AND	JOHN ARTHUR COWAN First Respondent KURT THOMAS GIBBONS AND 170 QUEENS DRIVE LIMITED Second Respondents

Hearing:	26 August 2021
Court:	French, Mander and Palmer JJ
Counsel:	J Mason for Appellants R C Laurenson and C D Batt for First Respondent C T Gudsell QC and M R C Wolff for Second Respondents
Judgment:	10 September 2021 at 10 am

JUDGMENT OF THE COURT

\

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

The appellants, Christine and Te Rahui Cowan, are the children of the first respondent, John Cowan. They are in dispute over the ownership of a property situated at Lyall Bay, Wellington (the property) that John has agreed to sell to a developer. After appealing to this Court, they obtained a caveat over the property.[1] A condition of the order permitting them to lodge a caveat required them to provide an undertaking as to damages, to protect John should their claim to the property fail.[2]
[1]Cowan v Cowan [2021] NZCA 31.
[2]At [14].
An undertaking was filed. However, John applied to the High Court to remove the caveat on the basis the undertaking was without worth.[3] Associate Judge Lester accepted Christine and Te Rahui had failed to provide evidence their undertaking was of value.[4] As a result, he held the condition had not been satisfied and the caveat should be removed.[5] It is against that decision that Christine and Te Rahui now appeal.

Background

[3]Also before the High Court was an application by the developer for specific performance of the sale and purchase agreement for the Lyall Bay property.

[4]Cowan v Cowan [2021] NZHC 1291 [Decision under appeal] at [24]–[33].

[5]At [34] and [57]–[61].

In 1974, the Lyall Bay property was purchased by John and his wife, Marama Cowan. It was settled under the Joint Family Homes Act 1964. Despite difficulties in their relationship, the couple remained married for almost 50 years until Marama died in March 2019. The couple also purchased a property in Carterton that they held as joint tenants.
In the late 1990s, John became indebted to the Inland Revenue Department. It is said Marama had to sell a property she owned to discharge this tax debt. The couple’s relationship became strained and on at least one occasion they temporarily separated. These marriage difficulties appear to have been the catalyst for an agreement they entered into in 2002 regarding the property (the 2002 agreement).
The 2002 agreement is of some importance because it is central to Christine’s claim that she is the beneficial owner of the property and has a caveatable interest in it. The 2002 agreement records that John “sells and gifts his share” of the “joint family home” to Christine. The status and effect of the 2002 agreement is in issue. John accepts he signed the agreement but maintains…

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.

Keep reading for free

Create a free CaseChat account to read Cowan v Cowan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZCA 463
Decision Date: 10 September 2021 at 10 am

CaseChat Overview and Summary

In Cowan v Cowan, Christine and Te Rahui Cowan appealed against the decision of Associate Judge Lester to remove a caveat they had lodged over property in Lyall Bay, Wellington, which their father, John Cowan, had agreed to sell. Christine claimed to be the beneficial owner of the property based on an agreement from 2002, and Te Rahui supported her claim. The appeal centred on whether the appellants had satisfied the condition of providing an undertaking as to damages, which was imposed by the Court of Appeal when granting leave for the appellants to lodge a second caveat.

The Court of Appeal found that the appellants had not provided any evidence to support the value of their undertaking as to damages. Associate Judge Lester had concluded that the condition had not been met and removed the caveat. The Court of Appeal held that the appellants' arguable beneficial interest in the property could not support the undertaking, which was intended to protect John from potential damages if the appellants' claim failed. The Court emphasised that the Associate Judge was not at liberty to waive the condition or modify the orders of the Court of Appeal.

The Court of Appeal dismissed the appeal and ordered the appellants to pay costs to both respondents. The decision underscored the necessity for an undertaking as to damages to be accompanied by evidence of its value, and the importance of complying with conditions imposed by the Court of Appeal when granting leave to lodge a caveat.

Orders