Cowan v Cowan - [2021] NZHC 1291

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-137

[2021] NZHC 1291

UNDER Section 142 of the Land Transfer Act 2007 and Rule 19.2(1) High Court Rules 2016

BETWEEN

JOHN ARTHUR COWAN

Applicant

AND

TE RAHUI JOHN COWAN and CHRISTINE MARAMA COWAN

Respondents

CIV-2021-485-153

BETWEEN

AND

KURT THOMAS GIBBONS
First Plaintiff

170 QUEENS DRIVE LIMITED
Second Plaintiff

AND

JOHN ARTHUR COWAN

Defendant

Hearing:
21 May 2021

(AVL from Wellington)

Appearances:

J D Mason and S H Roper for Christine Cowan and Te Rahui Cowan

R C Laurenson and C D Batt for John Cowan

C T Gudsell QC and M R C Woolf for Plaintiffs in CIV-2021-485-153

Judgment:

2 June 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

COWAN v COWAN [2021] NZHC 1291 [2 June 2021]

[1] This is an application by John Cowan (John) to remove a caveat registered by the respondents, Christine Cowan (Christine) and Te Rahui Cowan (Te Rahui), over a property in Lyall Bay, Wellington.

[1] John is the father of Christine and Te Rahui. John is the registered proprietor of the property subject to the caveat. He became the sole registered proprietor by survivorship following the death of his late wife, Marama Cowan, who died on 19 March 2019.

[2] This application is the third time the parties have been before the senior courts in the last three months or so. On 19 February 2021, Associate Judge Johnston declined Christine and Te Rahui’s application to sustain earlier caveats over the Lyall Bay property and another property at Carterton. I will refer to his Honour’s judgment for a summary of the background.1

[3] With Associate Judge Johnston declining the application to sustain the caveats, an appeal was heard as a matter of urgency by the Court of Appeal on 24 February 2021. The appeal was allowed and leave given to Christine and Te Rahui to lodge a second caveat over the Wellington property.2 That order was subject to conditions which I will also refer to below.

[4] There was a degree of urgency in dealing with the original application as John has entered into an agreement to sell the Wellington property to a third party. Settlement of that sale was due on 25 February 2021. The purchaser under that agreement has filed submissions in support of the application before me. The purchasers’ application for summary judgment against John Cowan was heard alongside the application by John to remove the caveat.

[5] Associate Judge Johnston’s summary of the facts records that John and Marama were married for nearly 50 years. Their marriage had its ups and downs, like most long term relationships, but they remained married until Marama’s death. The couple apparently acquired the Lyall Bay property, which was the family home,

1 Cowan v Cowan [2021] NZHC 208.
2 Cowan v Cowan [2021] NZCA 31.

relatively early in their marriage. Both the Lyall Bay and the Carterton property were held by John and Marama as…

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.

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Details

Case: [2021] NZHC 1291
Decision Date: 2 June 2021

CaseChat Overview and Summary

In Cowan v Cowan, the applicant, John Cowan, sought the removal of a second caveat over a property in Lyall Bay, Wellington, registered by his daughters, Christine Cowan and Te Rahui Cowan. The Court of Appeal had previously allowed the respondents to lodge a second caveat on the condition they complied with certain terms, including filing proceedings and providing an undertaking as to damages. John argued the respondents had not complied with the conditions, and even if they had, Christine had no caveatable interest in the property.

The court found that the respondents had not substantially complied with the undertaking condition, and accordingly, the caveat should be removed on that basis. The court also found Christine had an arguable interest in the property based on a 2002 agreement between John and his late wife, Marama. However, the court removed the caveat and ordered the sale proceeds to be held on interest bearing deposit. This was because the substantive proceedings claimed the entire property, while Christine’s maximum entitlement would be half. The court did not see a realistic prospect of Christine securing the entire property, given John’s entitlement under the Property (Relationships) Act 1976 and the Family Protection Act 1955.

The court also made orders in relation to an application for specific performance brought by the purchaser against John. The order was to lie in court and not be enforced until the caveat was removed and John took steps to enable settlement. The court reserved formal orders on costs.

Orders