French v French HC Auckland CIV 2010-419-661
[2010] NZHC 971
•21 June 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-419-661
UNDER The Land Transfer Act 1952
IN THE MATTER OF an Ex Parte Application for an Order to
Remove a caveat
BETWEEN GEORGE ROBERT FRENCH AND DELWYN PAMELA FRENCH Applicants
ANDROBERT WAYNE FRENCH Respondent
Hearing: 18 June 2010
Appearances: Mr G O'Brien for Applicants
Mr R W French respondent in person
Judgment: 21 June 2010 at 4.30 pm
JUDGMENT OF ASSOCIATE JUDGE DOOGUE
This judgment was delivered by me on
21.06.10 at 4.30 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Counsel:
Insight Legal, 181D Great South Road, Takanini – [email protected]
Copy:
R W French, Back Miranda Road, R D 6, Thames
FRENCH V FRENCH HC AK CIV-2010-419-661 21 June 2010
Background
[1] On the 26 May 2010, the respondent lodged a caveat against the title to land comprising a farm property owned by his brother, George Robert French (“George”) and his wife Delwyn Pamela French (“the applicants”). The caveat was in the following terms:
Estate of Interest claimed
An estate of Fee Simple as the executor and beneficiary of the will of Mary
Elizabeth French 29/9/1988 and the Last will of John Robert French
3/5/2000 as they hold a mortgage on the above mentioned certificate of title
...Re: the parties mentioned in the Section Estate of intrest [interest] claimed: Mary Elizabeth French and John Robert French had a contracturol [contractual] agreement by way of mortgage with George Robert French and Delwyn Pamela French the current registered proprietor’s S/S 267/203/
R o French 25/May/2010
[2] George and his wife filed an application to discharge the caveat and served it on the respondent on 10 June 2010. The applicant in the first instance had hoped to obtain orders on a without notice basis but Priestley J, before whom the matter came in Hamilton, declined to deal with it on that basis and the file was transferred to the Auckland Registry. It came before me on 15 June 2010 and I concluded at that time that the respondent had not had the time allowed for in the rules to file a notice of opposition and affidavit.
[3] Rule 7.24 of the rules required that the respondent file a notice of opposition three working days before the hearing date but he had not been served in time to do that. I accordingly adjourned the matter to an urgent fixture which I scheduled for
18 June 2010. The respondent sent a memorandum by fax to the Court on 14 June
2010 and today when he appeared before me filed a further memorandum. The effect of the memoranda coupled with the terms of the caveat suggests that the respondent’s grounds are these:
a) If the lawyer acting in the estate (who is also the applicants’ lawyer acting in the present proceeding) had properly followed the instructions of the respondent at some time in the past, the respondent
would have acquired by transmission a mortgage which was granted to his late parents over the applicants’ farm;
b)The solicitor, Mr O’Brien, who is acting for the applicants was instructed “to probate” a will of my mother which he neglected to do;
c) There is a conflict of interest between the solicitor having represented the respondent and perhaps other unnamed persons on the one hand and the applicants in this proceeding on the other;
d)Mr O’Brien tried to get Mr French senior (now deceased) to draw up a will appointing Mr O’Brien as executor;
e) The estates of the parents of the male applicant and the respondent are
“not settled”.
[4] The notice of opposition which the respondent has filed ought to have satisfied the following requirements which are those described, accurately in my view, in the commentary in McGechan to r 7.24:
The purpose of the notice of opposition, and the prescribed times for filing, is to give the other parties fair notice of the grounds of opposition.
[5] As well as filing a notice of opposition compliant with the above description, the respondent ought to have filed an affidavit at the same time: r 7.25.
[6] When he appeared before me on 18 June 2010, the respondent said that he needed more time to consider the application. He did not tell me that he had been trying to obtain legal representation, nor did he say that he intended to instruct a solicitor in the matter.
[7] Without determining whether I should give the respondent further time I heard argument and reserved my decision. The matters that I will decide in this judgment are whether I should give the respondent the opportunity to make further submissions and file more materials and, if not, to decide the substantive application.
[8] By the time the matter came before me on 18 June, the respondent had been in possession of the application and affidavit in support for some seven days. He had been served with my minute of 15 June 2010 which indicated (as had Priestley J when the matter was mentioned before him on 4 June 2010 at Hamilton), that the matter was urgent. The urgency arises because the applicants, who have entered into an agreement for sale and purchase to sell their farm, are now in default under that agreement. They cannot settle because of the presence of the caveat which was lodged on 26 May 2010. As well, they are parties to another agreement for sale and purchase which they are in default under.
[9] The approach I take to the adjournment application is that if the respondent had a genuine claim which required further preparation it should have become apparent from the caveat that he had filed and the memoranda that he has presented to the Court as well in the submissions that he has made. Had there been an arguable defence which he could put forward to resist the removal application which required further investigation I may have considered imposing a tight timetable and allowing him to present further documents and still further argument.
[10] However, for reasons which I set out below, I do not believe that the respondent has any such argument and I do not consider that it would be just and fair, in the circumstances of urgency that apply in this case, to give him further ground to “prepare” (as he put it in his memorandum) for the hearing of this matter. I now turn to the substantive application.
Background
[11] There has been a long history of conflict between the two sons of Mr and Mrs Mary Elizabeth French and John Robert French. The lodging of this caveat and the subsequent proceedings are the latest round in continuing hostilities.
[12] On at least one occasion the matter has been before the High Court. On 29
October 2003, Venning J delivered judgment on an application by the present respondent. He sought an order recalling a grant of probate of the will of the father (Jack French) which was granted to the Public Trust on 26 October 2001 under an
earlier will dated 29 September 1988. He also sought that a later will – that of 3
May 2000 – be admitted to probate. The proceedings in the Hamilton registry are numbered CIV-2003-419-000316. The respondent failed in his applications. From the affidavit material filed and from Venning J’s judgment the following sequence of events appears.
[13] In September 1988, Mary Elizabeth French and Jack French executed wills. Mrs French died in March 1999. The Public Trustee was eventually appointed administrator of that estate in August 2000.
[14] Jack French died 9 May 2001. On 14 November 2001, the Public Trustee was appointed administrator of the 1988 will. However, the respondent, as I have said, claimed that there was a later will than the 1988 will, which his father allegedly made on 3 May 2000. The respondent sought probate of that will. That will had the effect of cutting out the respondent’s brother and his sister. As I have said, though, that proceeding failed.
[15] The background to the caveat application is as follows. In 1992 the applicants’ gave a mortgage over their farm property to the parents. A mortgage was in fact registered against the title in November 1992. However, affidavits filed by the applicants establish that that mortgage was discharged in December 2000. The discharge was provided by the Public Trustee as administrator of the estate of Jack French. It is therefore 10 years since the estate of Jack French had any interest in the property as mortgagee. Such interest as he had was extinguished when the mortgage was discharged. Even if the respondent was the legal representative of Jack French, which he is not, he would not have any right or authority to bring proceedings in the name of the estate based upon that mortgage. I say that he has no standing to represent the estate because the judgment of Venning J coupled with the subsequent orders appointing the Public Trustee make that clear.
[16] The fact that the respondent considers that Mr O’Brien might in some way have failed to bring about a state of affairs in which he, the respondent, would have had authority to intervene in the matter of the mortgage cannot give rise to any interest in the land which could be protected by a caveat. For these reasons, the
caveat cannot be supported. That being so the caveat should be removed: Sims v
Lowe [1988] 1 NZLR 656-659. The caveator has not discharged the onus under s
143 of the Land Transfer Act 1952, which rests on him to show that he has a reasonably arguable case for the interest he claims. He is not able, in other words, to show that he is entitled to or is beneficially interested in the estate referred to in the caveat by virtue of an unregistered agreement or instrument or transmission or of any trust expressed or implied: s 137 of the Land Transfer Act 1952.
[17] For those reasons, I direct that the caveat is to be discharged. The parties should file any memorandum that they wish me to consider on the matter of costs within the next 14 days.
[18] Finally, I direct that this judgment and the sealed order consequent upon this judgment can be served by the same means as Associate Judge Bell directed in his
minute of dated 10 June 2010.
J.P. Doogue
Associate Judge
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