Harrison v Harrison - [2016] NZHC 574

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2895

CIV-2016-404-162 [2016] NZHC 574

UNDER s 143 Land Transfer Act 1952

IN THE MATTER

of removal of Caveat No 9612733.1

BETWEEN

GRAEME ROSS HARRISON AND ADRIENNE HARRISON

Plaintiffs

AND

PAULINE JANICE HARRISON First Defendant

ANGELA JANICE HARRISON Second Defendant

Hearing: 26 April 2016

Counsel:

RO Parmenter for plaintiffs in summary judgment proceeding and in respect of the applicants seeking the setting aside of a caveat

No appearance by the defendants, who were also respondents

Judgment:

27 April 2016

JUDGMENT OF FAIRE J

Solicitors: Birdsey & Associates, Auckland (N Birdsey)

To: PJ and AJ Harrison

Harrison v Harrison [2016] NZHC 574 [27 April 2016]

[1] Two proceedings were list before me at 9 am on 26 April 2016. They are:

(a) the plaintiffs’ application for summary judgment, for which related

papers were filed on 3 December 2015; and

(b) an application for removal of a caveat, filed on 9 February 2016.

[2] Both proceedings seek the same relief, namely the removal of caveat

9612733.1.

[3] Both proceedings were the subject of an application for substituted service. Whata J made orders for substituted service. Service was effected in terms of the order which was made.

[4] The respondents/defendants have filed memoranda with the court. They were referred to me. I issued a minute dated 23 March 2016, which contained the following:

[7] It is not appropriate for me to deal with matters raised in the memoranda that have been filed. The appropriate place is either by filing position documents provided by Part 19 of the High Court Rules in respect of the originating application and, as provided in Part 12 of the High Court Rules in respect of the summary judgment application. Additionally, if the defendants seek to dismiss or stay one of the proceedings, they may consider whether an application under Part 15 of the High Court Rules is appropriate.

[8] I detect there may be a wish on the defendants’ part to challenge the order for substituted service. If they determine that there have been grounds for doing so, the starting point for such an application would be a consideration of r 7.49 of the High Court Rules.

[9] I have set out the procedural route which must be followed. … I repeat: the current memoranda are not the appropriate course which should be followed, if those applications are to be opposed.

[5] Mr Parmenter advised that if this Court orders that the caveat be removed, he would seek leave to withdraw the summary judgment application and discontinue that proceeding. In the orders that I make in this judgment, that position is taken into account.

[6] The interest claimed in the caveat, the subject of this proceeding, is described as follows:

The above named caveators claim a beneficial interest in the land contained in C/TNA18C/1222 as cestui que trust which is property purchased from the Trust Fund of the VALERIE GEARD TRUST made by Deed of the First Caveator’s Sister…

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 Harrison v Harrison

Details

AGLC: Harrison v Harrison [2016] NZHC 574
Case: [2016] NZHC 574
Decision Date: 27 April 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Graeme Ross Harrison and Adrienne Harrison sought the removal of a caveat lodged by Pauline Janice Harrison and Angela Janice Harrison on a property at 19 Causeway Road, Waiheke Island. The applicants claimed that the caveat, which was based on an alleged interest in the Valerie Geard Trust, was invalid. The case involved two proceedings: an application for summary judgment and an application for the removal of the caveat. Both proceedings aimed to remove the caveat, which was registered under the Valerie Geard Trust.

The court had to decide whether the respondents had a caveatable interest in the property. This required examining the nature of their claimed interest under the Valerie Geard Trust, and whether it was sufficient to support a caveat under the Land Transfer Act 1952. The court also needed to determine if the doctrine of res judicata applied, preventing the applicants from challenging the validity of the caveat again.

The court found that the respondents did not have a caveatable interest in the property. Pauline Harrison was a beneficiary under a discretionary trust, which did not confer on her a beneficial interest in the land to be caveated. Angela Harrison was merely a possible beneficiary, which did not support a caveat. The court also dismissed the argument that the earlier judgment on the validity of the resettlement of the Waiheke Property Trust created an estoppel, preventing the current application from being heard. The court concluded that the proceedings were sufficiently different to warrant a fresh consideration of the issue.

The court ordered the removal of Caveat No 9612733.1 from the Certificate of Title, identifier NA 18C/1222. The applicants were awarded costs on a 2B basis for the originating application, including the specific application necessary to deal with the question of service. The summary judgment application and the proceeding in respect of which it was filed were struck out, with no order for costs made in respect of that proceeding.

Orders