Emslie v Walker - [2021] NZHC 3230

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-59

[2021] NZHC 3230

IN THE MATTER OF an application pursuant to s 143 of the Land Transfer Act 2017 that Caveat 1216093.1 not lapse

BETWEEN

MARIAN FAULKNER EMSLIE

Applicant

AND

IAN MARK WILFRID WALKER

Respondent

Hearing: 4 November 2021

Appearances:

M J Wenley for Applicant J L Bates for Respondent

Judgment:

30 November 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] This is an application for an order pursuant to s 143 of the Land Transfer Act 2017 that a caveat lodged by the applicant, Mrs Marian Emslie, against a property registered in the name of the respondent, Mrs Emslie’s son, Mr Ian Walker, not lapse. It arises against the background of a series of tragedies that have beset the family.

[2] The substantive issue in the case is whether Mr Walker owns the property legally and beneficially, subject to a contractual obligation to pay an amount of
$42,000 calculated to have been his mother’s equity in the property when he purchased it from her, or whether he is a mere legal owner of the property which is beneficially owned by Mrs Emslie.

EMSLIE v WALKER [2021] NZHC 3230 [30 November 2021]

[3] This being an application for an order sustaining a caveat, it is well settled that Mrs Emslie, as the applicant, needs to demonstrate that she has a reasonably arguable claim to a propriety interest in the property which the law will recognise by way of an institutional trust.1 Because this is a summary procedure, not well suited to the determination of disputed questions of fact, an order sustaining a caveat will only be refused if it is clear that the caveat cannot be maintained.2

[4] The factual background is not controversial. Mrs Emslie is a widow. She is in her mid 80s. She and her late husband had five children, including Mr Walker. She was a Methodist Church Minister. In January 2004, the Public Trust — which I am assuming was Mrs Emslie’s late husband’s executor and trustee — and Mrs Emslie, purchased a property at 95 Bledisloe Road, Napier.

[5] In June 2006, Mrs Emslie was convicted on a charge of theft by a person in a special relationship. As I understand the position, she had stolen money from one of her parishioners. The sentence of the Court included an order that she pay reparations reflecting the amount stolen — $90,815.86. Mrs Emslie did not have this money. She asked her children to assist. Only Mr Walker was in a position to do so.

[6] One firm of solicitors acted for both Mrs Emslie and Mr Walker in relation to the transaction. From the certificate of title to the property and other documentation, the way in which the arrangement was structured is clear. Mrs Emslie sold 95 Bledisloe Road to Mr Walker outright. Her indebtedness secured over the property was repaid. Mr Walker borrowed the funds necessary to purchase…

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 Emslie v Walker

Details

AGLC: Emslie v Walker [2021] NZHC 3230
Case: [2021] NZHC 3230
Decision Date: 30 November 2021

CaseChat Overview and Summary

The case of Emslie v Walker concerns an application by Mrs Marian Emslie, the applicant, to sustain a caveat lodged against a property in Napier, registered in the name of her son, Mr Ian Walker, the respondent. The core dispute revolves around the legal and beneficial ownership of the property, with Mrs Emslie contending that she remains the beneficial owner, while Mr Walker asserts that he holds both legal and beneficial ownership. The High Court of New Zealand was tasked with determining whether the caveat could be sustained based on Mrs Emslie’s claim of an institutional trust over the property.

The primary legal issue was whether Mrs Emslie had established a reasonably arguable claim to a proprietary interest in the property that would justify sustaining the caveat. Given the nature of the summary procedure, the Court needed to assess if it was clear that the caveat could not be maintained. The Court also considered whether the caveat should be sustained to protect Mrs Emslie's interests pending a full trial, especially in light of an impending sale to a third party.

In rendering the judgment, Associate Judge Johnston noted that both parties presented credible but conflicting accounts of the property arrangement. Mrs Emslie argued that the transaction was a disguised arrangement where she remained the beneficial owner, while Mr Walker maintained that the transaction reflected a straightforward sale with an acknowledged debt. The Court found the factual evidence insufficient to definitively resolve the dispute but acknowledged the arguability of Mrs Emslie's claim. The impending sale to a third party and the need to protect Mrs Emslie’s interests led the Court to sustain the caveat. Conditions were imposed for Mrs Emslie to commence and diligently prosecute substantive proceedings within 20 working days, and for a case management conference to expedite the trial.

In conclusion, the Court ordered the caveat to be sustained, subject to Mrs Emslie initiating and prosecuting substantive proceedings promptly. Costs were reserved, with a preliminary view that the applicant might be entitled to an award of scale costs on a 2B basis if unresolved by the parties.

Orders