Gallagher v Grant - [2021] NZHC 1907

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2021-476-000029

[2021] NZHC 1907

UNDER the Land Transfer Act 2017 and the Property Law Act 2007

IN THE MATTER

of an application for removal of a caveat against dealings and an application for an order of sale

BETWEEN

RACHEL MARGARET GALLAGHER, BLAIR CAYZER GALLAGHER and RICHARD COLIN BURNS GALLAGHER

as trustees of the Margaret Gallagher Family Trust
First Applicants

AND

RACHEL MARGARET GALLAGHER (as

trustee and executor of the estate of Colin Henry Gallagher

Second Applicant

AND

DEIRDRE MARGARET GRANT

Respondent

Hearing: On the papers

Counsel:

R J H Scott for Applicants

Judgment:

27 July 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 27 July 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GALLAGHER v GRANT [2021] NZHC 1907 [27 July 2021]

[1]The applicants intend to commence a proceeding for:

(a)the removal of a caveat lodged by the respondent on a property at 76 Beacon Point Road, Wanaka (the property) under s 142 of the Land Transfer Act 2017; and

(b)for the sale of the property and distribution of the proceeds of sale under s 339 of the Property Law Act 2007.

[2] The applicants wish to commence their proceeding by way of originating application under pt 19 High Court Rules 2016.

[3] The application for the removal of the caveat can be commenced by way of originating application as of right.1 The application for the sale of the property under s 339 of the Property Law Act is not a proceeding to which pt 19 applies. However, the Court may in the interests of justice permit a proceeding to be commenced by originating application.2 The issue is whether it is in the interests of justice for the Court to make such an order in this case.

Background

[4]The parties are all members of the Gallagher family.

[5] The applicant, Rachel Margaret Gallagher (Mrs Gallagher), is the widow of the late Colin Henry Gallagher (Mr Gallagher). Mr and Mrs Gallagher had three children who are still living, namely the applicants, Blair Cayzer Gallagher and Richard Colin Burns Gallagher, and the respondent Deirdre Margaret Grant (Deirdre).

[6] The residence on the property was built by Mr and Mrs Gallagher and used as a holiday home, predominantly by Mrs Gallagher following Mr Gallagher’s early death. To a lesser extent it has also been used by their children.

[7]The property is presently owned in the following shares:

1 High Court Rules 2016, r 19.2(l).
2 Rule 19.5(1).

(a)a one half share by the first applicants as trustees of the Margaret Gallagher Family Trust (the Trust). This is a trust established by Mrs Gallagher and she is the primary beneficiary; and

(b)a one half share by Mrs Gallagher as the trustee and executor of Mr Gallagher’s estate.

[8] The terms of Mr Gallagher’s will provide that Mrs Gallagher has a life interest in…

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 Gallagher v Grant

Details

AGLC: Gallagher v Grant [2021] NZHC 1907
Case: [2021] NZHC 1907
Decision Date: 27 July 2021

CaseChat Overview and Summary

The case of Gallagher v Grant involved an application by the Gallagher family to remove a caveat and to sell a property in Wanaka. The applicants, Rachel Gallagher, Blair Gallagher, and Richard Gallagher, sought to remove a caveat lodged by Deirdre Grant over the property and to sell the property to provide for the needs of Mrs Gallagher. The applicants argued that it was in the interest of justice to allow the proceedings to be commenced by way of originating application. The Court was required to determine whether it was in the interest of justice to permit the proceeding to be commenced by way of originating application, particularly in relation to the application for the sale of the property. The Court considered the nature of the proceedings, the issues involved, and the potential for prejudice to the respondent. The Court also considered the age of Mrs Gallagher and the potential for her needs to change suddenly. The Court found that the application to remove the caveat and the application for the sale of the property were related and that the issues were well defined. The Court also found that there would be no need for detailed pleadings, discovery orders, or the joining of other parties. The Court further found that the potential for a counterclaim by Deirdre was a separate matter that could be addressed separately. The Court concluded that it was in the interest of justice to permit the proceeding to be commenced by way of originating application. The Court granted the application for leave to commence the proceeding by way of originating application. Costs were reserved.
Solicitors: Lane Neave, Christchurch.

Orders