Halliday v Hannah
[2022] NZHC 2066
•19 August 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-2343
[2022] NZHC 2066
IN THE MATTER of the Trusts Act 2019 and the Land Transfer Act 2017 BETWEEN
KERRI-ANN MAREE HALLIDAY
Plaintiff
AND
SHANE CHRISTOPHER HANNAH
First Defendant
JASON HANNAH
Second Defendant
Hearing: 31 May 2022 Appearances:
N Woods for the Plaintiff
M Phillips for the First Defendant
GTB Coleman for the Second DefendantJudgment:
19 August 2022
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 19 August 2022 at 3pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Rice Craig, Auckland
Vicki Ammundsen Trust Law Ltd, Auckland Lance Lawson Ltd, Rotorua
KERRI-ANN MAREE HALLIDAY v SHANE CHRISTOPHER HANNAH [2022] NZHC 2066 [19 August 2022]
Introduction
[1] The plaintiff has applied for summary judgment of proceedings seeking an order for sale of a property at 58 Morey Street, Owhata, Rotorua, and for division of the sale proceeds in equal shares between her and the second defendant, her former relationship partner and father to her two children.
[2] The plaintiff relies on a Deed of Bare Trust (Trust Deed) which was entered into in 2010 between herself, the first defendant (the second defendant’s brother) and the second defendant. Amongst other things, this Trust Deed recorded that the first defendant, as trustee, would hold an undivided half share in the property on trust for the plaintiff as beneficiary.
[3] The plaintiff and the second defendant have not been in a relationship since 2012. The plaintiff’s submissions record that their subsequent relationship has remained hostile.
[4] In 2021 the first defendant transferred his half interest in the property to the second defendant to allow refinancing of the mortgage. Neither of the defendants nor their lawyers spoke to the plaintiff or otherwise sought her consent to the transfer of the property or the refinancing. The plaintiff submits that this is a clear breach of the Trust Deed and that the first defendant has been assisted in this breach by the second defendant, as the recipient of the one-half share of the plaintiff’s interest in the property.
[5] The plaintiff submits that paragraph J of the Trust Deed clearly articulates that on the refinancing of the property or its sale, all net proceeds as to an undivided one- half share will be “repaid in full to the beneficiary without deduction”.
[6] The defendants submit in response that the Trust Deed is premised on the relationship continuing and the clauses relied on by the plaintiff are unworkable and inapplicable under the present circumstances. Since 2012 when the parties separated, the second defendant has paid all outgoings on the property including all mortgage payments.
[7] Both the first and second defendants submit an order for sale is not available on the plaintiff’s case as pleaded.
[8] Furthermore, even if it were available, such an order would require the Court to embark on a full factual enquiry before it is made, so summary judgment is not appropriate.
[9] Finally, the plaintiff submits that a further option (although not preferred) would be to enter summary judgment for liability and require an accounting exercise to take into account the parties’ contributions including an allowance for occupation rent by the second defendant.
Issues
[10]The issues are:
(a)Has there has been a breach of trust as alleged?
(b)Is an order for sale available?
(c)If it is, ought such an order to be made on a summary judgment basis in the circumstances?
(d)In the alternative, should summary judgment be entered for liability with an accounting exercise to follow?
Summary judgment principles
[11] To succeed in her application, the plaintiff must satisfy the Court that the defendants have no defence to the causes of action in the statement of claim or to a particular part of any such cause of action.1
[12] The principles that apply to summary judgment applications are well established:2
1 High Court Rules 2016, r 12.2(1).
2 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307at [26]–[27] (citations omitted).
(a)The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried.
(b)The Court must be left without any real doubt or uncertainty.
(c)The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant would have to respond if the application is to be defeated.
(d)The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents.
(e)In the end, the Court’s assessment of the evidence is a matter of judgment.
(f)Summary judgment will be denied if, on the hearing of the application, it hears that there is an issue worthy of trial.
[13] The defendants rely on Doyles Trading Co Ltd v Westend Services Ltd where, after recording that “the new summary judgment procedure is designed for the speedy resolution of meritorious claims”, Casey J continued:3
While the desirability of eliminating the frustration and delays which can be caused by unmeritorious or tendentious defences needs no emphasis, it is important to pay proper regard to the defendant’s interest and to be wary of allowing the rule to become an instrument of oppression or injustice in the laudable interest of expediting litigation. It is true that ‘justice delayed is justice denied’, but not at the expense of a fair hearing for both parties, unless the Court is sure there is no real defence.
[14] In addition, the defendants refer to the recognition by the Courts that certain claims are inherently unsuitable for summary judgment and that this includes claims for orders for sale under s 339 of the Property Law Act 2007 (PLA) as it involves a discretionary exercise requiring consideration of the factors set out in s 342 of that Act.4
3 Doyles Trading Co Ltd v Westend Services Ltd [1989] 1 NZLR 38 (CA) at 41.
4 Bayly v Hicks [2012] NZCA 589 at [31].
Background
[15] The plaintiff and the second defendant were in a de facto relationship from 2000 to 2012. They had two children together over this time.
[16] In 2007 the plaintiff and second defendant purchased the property at 58 Morey Street, Owhata, Rotorua (Property) from Mr William Field (referred to by the plaintiff as her father and by the second defendant as the plaintiff’s de facto stepfather). The purchase price for the Property was funded primarily by way of:
(a)a loan from Liberty Finance Ltd for $138,802;
(b)a loan from Mr Field for $17,000.
[17] The Property was originally registered in the names of the plaintiff and second defendant as joint tenants. It became their family home.
[18] It appears the relationship was rocky in 2008-2009 but the parties reconciled and resolved to repay Mr Field and to refinance the house with a bank, rather than Liberty Financial Limited. There is a factual dispute as to the reasons why but that is not relevant to this application. For the purposes of refinancing, the parties agreed that the plaintiff would transfer her half share in the Property to her brother-in-law.
[19] The Deed of Bare Trust was entered into on 2 June 2010 between the plaintiff as beneficiary, the first defendant as trustee and the second defendant as partner. As set out above, amongst other things, the Trust Deed recorded that the first defendant would hold an undivided half share in the Property on trust for the plaintiff as beneficiary. The plaintiff and the second defendant obtained separate legal advice in relation to the Deed.
[20] On 10 June 2010 in accordance with the Trust Deed the defendants were registered as owners of the Property as tenants in common and equal shares subject to a mortgage with Bank of New Zealand.
[21] The plaintiff and the second defendant separated in 2012 and the plaintiff moved out of the Property with the children.
[22] The second defendant’s evidence is that, as at 1 January 2012, there was no equity in the Property.
[23] The second defendant annexes to his affidavit a copy of a letter from the plaintiff’s solicitor on 2 June 2012 seeking to divide their relationship property pool and proposing that the second defendant pay $12,200 to the plaintiff together with a small number of specific items. The second defendant’s solicitor replied on 8 August 2012. The letter began by recording that the second defendant acknowledged that, because of the length of their relationship, the vast majority of their property would be legally defined as “relationship property” and that they therefore had equal ownership of all such assets and equal liability for any debts. After setting out the assets and the debts, the letter concluded by saying:
Rather than there being any equity which can be split between the parties, it appears (based on our instructions and Jason’s information to us) that there is a very substantial deficit. Perhaps you would like to take further instructions and come back to us with your client’s further suggestion as to settlement of property issues.
[24] The plaintiff did not respond to this letter. No division of relationship property occurred then or since.
[25] The second defendant’s evidence is that since 1 January 2012, the plaintiff has neither offered to pay or paid any monies towards the Property nor contributed to any maintenance or work in respect of it. The second defendant says that he initially asked the plaintiff to make contributions when they first separated but that the plaintiff never did so. Since separation, the second defendant estimates the value of his contributions to the Property as exceeding $200,000.
[26] The plaintiff’s evidence in response is that all BNZ mortgage payments, rates, property insurance (including life insurance relating to the mortgage) and usual repairs and maintenance were paid by the second defendant in lieu of occupational rent.
[27] Between 2017 and 2021, the first defendant made it clear that he no longer wanted to be registered on the title of the Property as this affected his ability to raise finance to buy his own home.
[28] By 2021 the second defendant was in a position to obtain finance for the Property in his own name. On 12 April 2021 the first and second defendants entered into a Declaration of Bare Trust and Distribution to Beneficiary (Distribution Deed). The “Background” to the Distribution Deed records that the first defendant was registered as proprietor of a one half share in the Property in his capacity as Bare Trustee for the second defendant and that he held the interest in the Property at the absolute disposal of the second defendant.
[29] The operative clauses recorded that the second defendant now requires that the first defendant transfer his share in the Property to the second defendant and that the first defendant agreed to do so subject to the second defendant meeting all costs. In addition, the second defendant indemnified the first defendant for the costs of effecting the transfer and refinancing or that may subsequently be incurred.
[30] The first defendant’s evidence is that the second defendant’s lawyers drew up the paperwork and that the first defendant understood that any interest the plaintiff may have in the Property was being transferred from his name to the second defendant. His evidence is that he acknowledged that he was a bare trustee for the plaintiff and that he did not and never had had any beneficial interest in the Property.
[31] That is not what the Distribution Deed records, instead only referring to the first defendant holding the Property as bare trustee for the second defendant.
[32] The second defendant’s evidence is that he sought advice in March 2020 from Rodgers & Co and told them the history of the situation and that there was a Deed of Bare Trust. The second defendant says he asked Rodgers & Co whether it would be possible to transfer the Property into his sole name and that he was told that as the plaintiff’s name was not on the title to the Property and that the plaintiff had not made any payments in relation to the Property that the first defendant’s half share could be transferred into the second defendant’s name.
[33] The second defendant says that at no time did Rodgers & Co advise him before the Property was transferred into his sole name that either they or the second defendant should contact the plaintiff in relation to the transfer.
[34] On 3 June 2021 the original mortgage was discharged and a new mortgage to BNZ was registered, with the first defendant transferring his half interest in the Property to the second defendant. The plaintiff was not contacted in relation to this transfer and did not consent.
[35] The plaintiff says that she first became aware of the transfer when she and her new partner decided to buy a home together and she wanted access to the equity she owned beneficially in the Property. The plaintiff obtained a search copy of the title and saw the transfer by the first defendant on 3 June 2021. In response, on or about 1 November 2021, the plaintiff lodged a caveat against the Property.
[36] On 2 November 2021 the plaintiff’s lawyers wrote to the second defendant demanding that he transfer the half share in the Property back to her. This was followed by a letter on 8 November 2021 from the plaintiff’s lawyers to the first defendant making the same demands. The defendants did not do so.
[37] In December 2021 the plaintiff filed these proceedings accompanied by an application for summary judgment.
Has there been a breach of trust?
[38] The plaintiff claims that by transferring a half share in the Property to the second defendant, the first defendant acted in clear breach of the Trust Deed.
[39] The defendants submit that the starting point for consideration of whether there has been a breach are the terms of the Trust Deed itself, including recitals at A and B. These two recitals record that the plaintiff and the second defendant are in a relationship and that they currently reside in the Property. The first defendant therefore submits that it is readily apparent the terms of the Deed do not anticipate the prospect that the Trust will continue while the parties are living apart.
[40]The key recitals and clauses in the Trust Deed are as follows:
Background
A. The Beneficiary and the Partner are in a relationship.
…
E. The Beneficiary and the Partner currently reside in the Property and agree to meet all obligations and outgoings in respect of the Property and together with the Trustee, agree to continue to be personally responsible and liable to perform and observe all the outgoings in respect of the Bank’s mortgage secured against the property.
F. The Trustee, the Beneficiary and the Partner shall at all times remain personally liable to comply with all the terms and conditions of the Housing Term Loan Agreement and the mortgage over the property.
G. By entering into this Deed, The Trustee and the Beneficiary agree that the Trustee holds the Property on trust for the Beneficiary on the following terms and conditions:
H. That the Trustee will own and hold his undivided ½ share in the property in trust for the Beneficiary;
I. That the Partner will retain his separate undivided ½ share in the property;
J. That upon either the first of the following (whether that be a sale of the property or refinancing of the property) all net proceeds as to the undivided half share share that the Trustee is holding in trust for the Beneficiary, will be re-paid in full to the Beneficiary without deduction;
K. That the Trustee if called upon by the Beneficiary and the Partner, will sign all necessary documents to effect a sale of the Property if the Trustee is still registered as a proprietor of the Property.
1. Declaration of Trust
1.1 The Trustee agrees to transfer his legal interest in the Property to the Beneficiary. The Trustee’s interest shall be held on trust for the Beneficiary.
1.2 The Trustee will transfer Property. At the request and cost of the Beneficiary, the Trustee will transfer the Property from the Trustee to the Beneficiary as and when the Beneficiary requires.
…
1.4 The Trustee will allow the Beneficiary and the Partner to continue to occupy the Property as their principal place of residence or if required, rent the Property to tenants which are suitable to the Trustee.
2. Trustee may Act
[2.1]In the absence of instructions from the Beneficiary, the Trustee may act as he sees fit and the Beneficiary will be bound by the acts of the Trustee in this regard provided that any act by the Trustee is not in conflict with provisions G to K as set out in this Deed.
3. Beneficiary to Pay
3.1 Outgoings. The Beneficiary and the Partner will pay all outgoings payable in respect of the Property as and when necessary.
…
3.5 The Beneficiary and the Partner further acknowledge that any request to the Trustee to transfer his interest in the property or deal with the Property at the request of the Beneficiary as contained in Background J and K will at all times be subject to the Beneficiary and the Partner paying all outgoings payable in respect of the Property up to the date of transfer.
…
5. Indemnity
5.1 Indemnity. The Beneficiary and her Partner will keep the Trustee indemnified at all times against all loss and liability of any kind arising out of the Trustee acting as Trustee of the Property in consideration of the Beneficiary and her Partner residing in the Property.
[41] The first defendant submits that the Trust Deed makes little sense in the event of the parties’ separation especially regarding the obligations of the plaintiff and the second defendant. There is no provision for the allocation of post-separation contributions or how the net proceeds of sale or refinancing should be determined in the event of separation. In addition, the first defendant submits clause 2.15 of the Trust Deed permits the trustee, in the absence of instruction from the beneficiary, to act as he sees fit, subject only to Recitals G to K, with no requirement for the trustee to obtain or even seek instruction. Given the plaintiff’s apparent complete disinterest in the Property and in the absence of instruction, the first defendant says he had the power under the Trust Deed to transfer the plaintiff’s half share to the second defendant subject only to Recitals G to K.
[42] The first defendant continues that Recitals G to K themselves do not in any way prevent the first defendant as trustee from selling or refinancing the Property. The first defendant accepts that the Recitals require the trustee to pay to the beneficiary all net proceeds of the sale or refinancing but says that net proceeds of refinancing (as arguably happened here) are not defined in the Trust Deed. Nor has the plaintiff indicated what the net proceeds of the refinancing are.
[43] In the first defendant’s submission, Recital J appears only to contemplate a “refinance” by way of a transfer of the half interest back to the plaintiff and an increase in borrowings, that is the difference between the loan discharged and new loan will flow back from the first defendant to the plaintiff. The first defendant submits that the
5 Recorded as 3.1 in original Trust Deed.
clause is unworkable in the present context. He therefore says that he did not breach his obligations under the Trust Deed by transferring his bare legal interest to the second defendant.
[44] The second defendant submits that from the reference to s 127 of the Trusts Act 2019 in her statement of claim, the plaintiff appears to be seeking a review of the first defendant’s decision to transfer the half share of the Property pursuant to s 126 of the Trusts Act, although s 126 is not mentioned.
[45] Under ss 126 and 127 the Court must assess whether the first defendant’s decision was reasonably open to him in the circumstances.
[46] The defendants submit that the Courts have traditionally been slow to intervene in a trustee’s exercise of a power and will generally only do so if the exercise is ultra vires or a fraud on the power or if the power was exercised capriciously, in bad faith, or without adequate deliberation.6
[47] Importantly, pursuant to s 131 of the Trusts Act, the Court may relieve a trustee who is or may be personally liable for any breach of trust from personal liability for the breach if it appears to the Court that the trustee acted honestly and reasonably, and the trustee ought to be fairly excused for the breach.
[48] The Court of Appeal formulated a two-step test for honesty in Spencer v Spencer:7
We conclude that in New Zealand, the assessment of a trustee’s honesty comprises both subjective and objective elements. A critical first step is to establish what the trustee actually knew about the terms of the trust relevant to the breach alleged and whether the trustee knew that the impugned conduct amounted to a breach of trust. The trustee’s knowledge might include constructive knowledge arising from wilful blindness … The second step requires an assessment of whether, in light of what the trustee knew, he or she acted in the way an honest person would in the circumstances. This is to be assessed on an objective basis.
6 Nicola Peart (ed) Brookers Family Law – Family Property (online ed, Thomson Reuters,2022) at [TU126.03].
7 Spencer v Spencer [2013] NZCA 449, [2014] 2 NZLR 190 at [131].
[49] This means that whether the first defendant is liable for the breach will depend upon findings in relation to the first defendant’s state of mind and knowledge at the time of the 2021 transfer.
[50] As the defendants submit, the evidence is disputed on this important issue. Even the plaintiff is not consistent, saying in her first affidavit that she thinks “Shane has simply made a mistake” but then later, in her reply affidavit of 5 April 2022, that she believes “Shane is complicit and has facilitated Jason’s theft of my half-share of the property”.
[51] The first defendant’s evidence is that he understood that any interest the plaintiff had in the property was being transferred to the first defendant.
[52] The Court will need to make findings as to the first defendant’s credibility in this regard. The Supreme Court has held that summary judgment is not appropriate in cases where there are factual disputes and, in particular, credibility issues that cannot be resolved on the basis of the affidavit evidence.8
[53] Furthermore, the second defendant submits that the Court cannot reach a conclusion on the allegation of breach of trust against the first defendant without first determining the second defendant’s counterclaims. The second defendant submits that if the Court is satisfied that the counterclaims are made out, this would support the conclusion that the first defendant’s decision, as trustee, was reasonably open to him in the circumstances or otherwise would provide support for relief from any breach of trust.
[54] I accept that whether there has been a breach for which the first defendant ought to be liable is not a matter that can be determined on a summary judgment basis in this case. I do not consider therefore that the plaintiff has established that there is no arguable defence available to the first defendant for breach of trust or to the second defendant for knowing assistance for any such breach.
8 Sandman v McKay [2019] NZSC 41, [2019] 1 NZLR 519 at [97].
Is an order for sale available?
[55] In the alternative, or in addition, the plaintiff seeks an order for sale of the Property and an order directing that she be paid half of the net sale proceeds without deduction. The plaintiff submits that the express terms of the Trust Deed provide a basis for seeking these orders.
[56] The plaintiff submits that the right to an order for sale arises from the following:
(a)Recital K which provides that the Trustee is to act as directed by the Beneficiary and the Partner.
(b)Property received in breach of trust does not lose its traceable character even if it is improved or altered relying on Enright v Newton, citing Akita Holdings Ltd v Attorney-General of the Turks and Caicos Islands with approval.9
(c)The sale as proposed is the only way by which the plaintiff can be restored to the position she would have been in if the wrong had not occurred, being a sale obtained at best price sold on the open market.
[57] I consider that there is a reasonably arguable defence that Recital K of the Deed does not provide a basis for the plaintiff obtaining an order for sale. Recital K contemplates a joint decision by the plaintiff and the second defendant to sell the Property. There does not appear to be any provision within the Deed that entitles the plaintiff to unilaterally force a sale of the Property.
[58] Moreover, Recital K contemplates circumstances where the first defendant is still registered as a proprietor, which he is not at this stage.
[59] Even if Recital K was capable of that interpretation, it appears that it is subject to clause 3.5. Clause 3.5 provides that the Beneficiary and the Partner further acknowledge that any request to the trustee to transfer his interest in the Property or
9 Enright v Newton [2020] NZCA 529 at [124]; citing Akita Holdings Ltd v Attorney-General of the Turks and Caicos Islands [2017] UKPC 7; [2017] AC 590. ].
deal with the Property at the request of the Beneficiary as contained in Recitals J and K will at all times be subject to the Beneficiary and the Partner paying all outgoings payable in respect of the Property up to the date of transfer.
[60] The plaintiff, by her own admission, has not paid any outgoings in respect of the Property since the separation, with the second defendant going so far as to say she is in breach of her obligations under the Trust Deed by failing to contribute to those outgoings on the Property.
[61] The second defendant submits that the Court cannot properly consider an application for an order for sale unless and until it concludes that the plaintiff has a beneficial interest in the Property. If the Court were to reach this conclusion, the second defendant says the plaintiff would (in effect) be a co-owner of the Property and ss 339 to 343 of the Property Law Act 2007 (PLA) would apply. Section 339 provides the Court with a discretion to make a number of orders including an order for sale on the application of a co-owner.
[62] The Court of Appeal has commented that applications under s 339 are not well suited to summary judgment.10 There are a number of mandatory factors the Court must take into account in assessing such claims, including the extent of the co-owner’s share in the property, any corresponding hardship between the co-owners in the refusal or granting of the order, and the value of any contributions made by any co-owner to the cost of improvements and maintenance of the property.11
[63] In addition, the second defendant relies on Hawthorn v Hawthorn where Associate Judge Smith dismissed an application for summary judgment in respect of a sale order under s 339 of the Property Law Act. His Honour held that summary judgment was not appropriate given the need to determine the partners’ respective entitlements to share in the remaining assets of the former partnership and because he was unable to say that an order for sale of the relevant property was the only possible outcome if the case proceeded to trial.12
10 Bayly v Hicks, above n 4.
11 Property Law Act 2007, s 342.
12 Hawthorn v Hawthorn [2019] NZHC 3337, (2019) 20 NZCPR 625 at [48], [68]-[69].
[64] It is submitted on behalf of the second defendant that the Court has no jurisdiction to make an order for sale on the basis of the plaintiff’s pleaded case, and without determining the second defendant’s counterclaims.
[65] There may be a power to order a sale under the Trusts Act but it is not currently expressly pleaded. The plaintiff relies on the rule in Saunders v Vautier,13submitting that this is now contained in s 121 of the Trusts Act. However, operation of this section would result in the plaintiff being a co-owner but not in an order for sale. Furthermore, s 121 relies on the beneficiary holding “all of the beneficial interest in the trust property” and I have held above that it cannot be determined in these summary judgment proceedings whether the plaintiff does so.
[66] I consider that there is a reasonably arguable defence that neither the Trust Deed nor the pleadings otherwise provide a basis for the Court ordering the sale of the Property. The summary judgment application therefore fails on this basis as well.
[67] I go on to consider however whether if there were a power to order a sale, whether such an order could be made on a summary judgment basis in the current circumstances in case I am wrong in the above conclusion.
If an order for sale is available, could such an order be made on a summary judgment basis in these circumstances?
[68] If an order for sale were available, before the Court made such an order, it would need to consider whether it was appropriate in the circumstances. Here, the parties did not enter into a relationship property agreement following the end of their relationship. It may be that the decision on whether the Property was to be sold needs to be made in the context of relationship property proceedings. This is particularly the case where the second defendant has lived in the Property and paid all outgoings since 2012.
[69] Although orders are not being sought by the plaintiff under the PLA, the comments of the Court of Appeal that such orders are not appropriately made on a
13 Saunders v Vautier (1841) 4 Beav 115, 49 ER 282.
summary judgment basis, in my view, apply in these circumstances. The mandatory considerations under s 342 of the PLA are considerations that the Court would be likely to take into account whether the Court was exercising its discretion under the PLA or the Trusts Act or otherwise, including as they do the extent of the share in the property of any co-owner (s 342(a)), the hardship caused to the applicant by refusal of the order compared to hardship caused to any other person by making the order (s 342(d)) and the value of any contribution made by any co-owner to cost of improvements or maintenance of property (s 342(e)).
[70] These matters in the circumstances of this case are not matters that I am able to determine on the basis of the affidavit evidence filed. In my view, even if an order for sale were available, it would not be appropriate to make such an order in this case on a summary basis.
In the alternative, should summary judgment be entered for liability and then require an accounting exercise?
[71] Summary judgment for liability would only be available if I considered that judgment for liability for a breach of trust or for an order for sale was available on a summary basis. As I have held above that there are reasonably arguable defences to both of these claims, I do not consider that summary judgment can be granted just for liability in this case.
[72] The plaintiff has a caveat over the Property and so her interests are protected. The proceedings should go to a full hearing so that the position between the parties can be properly ascertained.
Result
[73]The application for summary judgment is declined.
Costs
[74] The defendants have succeeded and my preliminary view is that they are entitled to costs. I ask the parties to confer and attempt to reach agreement. If that is
not possible, memoranda may be filed on behalf of the defendants within 20 working days of this judgment and on behalf of the plaintiff within a further 10 working days.
Associate Judge Sussock
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