Flavell v Chote - [2021] NZHC 2262

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-188

[2021] NZHC 2262

IN THE MATTER OF the Estate of DIANNE BEVERLY MENZIES late of Turua, Deceased

BETWEEN

DALE THOMAS FLAVELL
Applicant

AND

PETER ROBERT CHOTE

Respondent

Hearing: 30 August 2021

Appearances:

G N Bradford for the Applicant C M Earl for the Respondent

Judgment:

31 August 2021

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 31 August 2021 at 2:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Michael J Walmsley, Paeroa, for the Applicant Jane Hunter, Thames, for the Respondent

Copy for:
G N Bradford, Auckland, for the Applicant C M Earl, Hamilton, for the Respondent

FLAVELL v CHOTE [2021] NZHC 2262 [30 August 2021]

[1] Mr Flavell, the executor of the estate of his late sister, Ms Dianne Menzies, applies under s 143 of the Land Transfer Act 2017 to sustain a notice of claim under s 42 of the Property (Relationships) Act 1976.

[2] In an application to sustain a notice of claim, the claimant has to show to the standard of a reasonably arguable case that they have a relationship property claim against someone they are or were married to, in a civil union with or a de facto relationship with, or against the personal representative of that person. That person must be the registered proprietor or have a beneficial interest in the land against which the notice of claim is lodged. The land against which the notice is lodged may be the subject of orders under the Property (Relationships) Act. The claimant does not have to begin a relationship property proceeding when they lodge the notice. Nor does there need to be a live dispute between the claimant and the person with the interest in the property. The court has a residual discretion whether to uphold the notice. There are varying views on that discretion: whether it is a reasonable requirements test1 or the same as for a caveat.2

[3] The notice of claim is lodged against record of title SA53B/248 for a residential property at 775 Hauraki Road, Turua. The notice of claim says that Ms Menzies was in a de facto relationship with Mr Chote for 23 years. The record of title to the property shows that at the date of her death, Mr Chote and Ms Menzies owned the property as joint tenants. Ms Menzies died on 16 March 2020. Mr Flavell, her brother, is the executor of her will under a grant of probate dated 3 August 2020. Under her will dated 16 November 1993, she left her entire estate in equal shares to her three sons, Aaron, Lee and Timothy.

[4] The notice of claim was lodged on 19 March 2021. Mr Flavell says that the value of the property at 775 Hauraki Road, Turua, is believed to be about $720,000. Mr Chote does not take issue with that.

1

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 Flavell v Chote

Details

AGLC: Flavell v Chote [2021] NZHC 2262
Case: [2021] NZHC 2262
Decision Date: 31 August 2021

CaseChat Overview and Summary

Flavell, the executor of his late sister, Ms Menzies’ estate, sought to sustain a notice of claim under the Property (Relationships) Act 1976 against Chote, Ms Menzies' former de facto partner. The claim aimed to protect the estate's interest in a residential property at 775 Hauraki Road, Turua, which Chote had taken by survivorship. The court was tasked with determining the validity of the notice of claim and whether it could be sustained.

The legal issues centered on whether the notice of claim complied with statutory requirements, whether an executor could lodge such a notice, and whether the court had jurisdiction to hear a common law claim for unjust enrichment. Additionally, the court needed to consider whether the notice could be sustained despite the passage of time since Ms Menzies' death and the potential unavailability of the estate's claim due to procedural delays.

The court ruled that the notice of claim was valid despite minor discrepancies in its form, emphasizing the practical need to allow electronic lodging of such notices. It held that an executor could indeed lodge a notice of claim, rejecting the argument that such a notice could only be made by a living claimant. The court further clarified that the notice, though technically flawed in naming the deceased claimant, could be corrected by allowing a new notice in the executor's name. The court also noted that the common law claim for unjust enrichment was misconceived, as any property division claims should be pursued under the Property (Relationships) Act, which mandates proceedings in the Family Court.

The court granted leave for the executor to lodge a corrected notice of claim and mandated that a proceeding under the Property (Relationships) Act be initiated in the Family Court within a specified timeframe. It struck out the common law claim for unjust enrichment and awarded costs to the executor.

The final orders included allowing the executor to lodge a corrected notice of claim, stipulating that the current notice would lapse upon the new one being lodged, requiring the executor to commence proceedings in the Family Court within four weeks, reserving the right to remove the notice if certain conditions were not met, striking out the common law claim, and awarding costs to the executor.

Orders