Legal Research
Cases
Harvey v Beveridge

Harvey v Beveridge

Case [2014] NZCA 72 20 March 2014

Constructive Trust

Unconscionable Conduct

Contract Formation

Restitution

Admissibility of Evidence

Limitation Periods

Property Law

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA521/2013
[2014] NZCA 72

BETWEEN	MEGAN ANN HARVEY Appellant
AND	IJAN BEVERIDGE Respondent

Hearing:	25 February 2014
Court:	Randerson, White and French JJ
Counsel:	A R Armstrong for Appellant R E Murphy and C R Becker for Respondent
Judgment:	20 March 2014 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BSummary judgment is entered for the appellant.
CThe respondent is ordered to give up possession of Unit 4, 35 Division Street, Riccarton, Christchurch (Land Registration number CB35B/1148) to the appellant within 28 days of the date of this judgment.
DThe appellant is entitled to mesne profits from the respondent in respect of the Unit from 24 January 2012 to the date on which possession of the Unit is given to the appellant.
EThe quantum of the mesne profits is to be determined, if necessary, by the High Court.

FThere is an order pursuant to s 143 of the Land Transfer Act 1952 that Caveat 9255862 lodged by the respondent against dealings in the Unit be removed.
GThe respondent is to pay the appellant costs for a standard appeal on a band A basis and usual disbursements.
HCosts in the High Court, which were reserved, are to be fixed by the High Court in light of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Introduction

The appellant, the Reverend Megan Harvey, is the executrix and trustee under the will of the late Dr Mark Byrd who died on 24 January 2012.
The respondent, Mr Ijan Beveridge, is the occupier of Unit 4, 35 Division Street, Riccarton, Christchurch. The Unit was owned by Dr Byrd and has been occupied by Mr Beveridge rent free since about 2008.
There was evidence that Dr Byrd intended that the Unit should belong to Mr Beveridge, but it was not transferred to him during Dr Byrd’s lifetime and there was no provision in Dr Byrd’s last will, which was dated 3 September 1999, relating to the Unit or to Mr Beveridge.
Following the death of Dr Byrd, notice was given on behalf of his estate to Mr Beveridge to vacate the Unit. Mr Beveridge declined to do so on the ground that he was in lawful possession of the Unit as the beneficiary of a constructive trust based on the common intention of Dr Byrd and Mr Beveridge. Mr Beveridge lodged a caveat against dealings in the Unit.
The Reverend Harvey issued proceedings against Mr Beveridge in the High Court at Christchurch seeking by way of summary judgment an order that he give up possession of the Unit and that he pay mesne profits at the rate of $350 per week from 24 January 2012 and costs. An order for the removal of the caveat was also sought.
Mr Beveridge issued a separate proceeding claiming a declaration that the Reverend Harvey holds the Unit on constructive trust for him and an order that she transfer the Unit to him.
The Reverend Harvey’s…

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 Harvey v Beveridge

Details

AGLC: Harvey v Beveridge [2014] NZCA 72
Case: [2014] NZCA 72
Decision Date: 20 March 2014 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Harvey v Beveridge involved Reverend Megan Harvey, as the executrix and trustee under the will of the late Dr. Mark Byrd, and Ijan Beveridge, the occupier of a unit owned by Dr. Byrd. Following Dr. Byrd's death, the Reverend Harvey sought summary judgment against Mr. Beveridge to vacate the unit and pay mesne profits, arguing that Dr. Byrd never intended for Mr. Beveridge to own the property. Mr. Beveridge, however, claimed that he was the beneficiary of a constructive trust based on the common intention of Dr. Byrd and himself. The Associate Judge dismissed the Reverend Harvey's application for summary judgment, finding that Mr. Beveridge had an arguable defence.

The Court of Appeal allowed the Reverend Harvey's appeal, finding that Mr. Beveridge had no defence to the claim for possession of the unit. The Court concluded that although there may have been an expressed intention by Dr. Byrd to give the unit to Mr. Beveridge, Dr. Byrd took no steps to perfect the gift in his lifetime or under his will. Moreover, a "common intention" constructive trust requires more than merely an express oral trust; there must be something that makes it unconscionable for the trust not to be recognised. In this case, there was no suggestion that Mr. Beveridge made any significant contribution to the value of the unit or that he changed his position in any way in reliance on Dr. Byrd's expressed intention. The Court found nothing unconscionable in Dr. Byrd resiling from his alleged expressed intention and making no provision for Mr. Beveridge in his will.

Accordingly, the Court of Appeal allowed the Reverend Harvey's appeal and made the following orders: Mr. Beveridge is to give up possession of the unit within 28 days of the date of the judgment; the Reverend Harvey is entitled to mesne profits from Mr. Beveridge in respect of the unit from 24 January 2012; the quantum of the mesne profits is to be determined, if necessary, by the High Court; there is an order for the removal of the caveat lodged by Mr. Beveridge; Mr. Beveridge is to pay the Reverend Harvey costs for a standard appeal on a band A basis and usual disbursements; and costs in the High Court, which were reserved, are to be fixed by the High Court in light of this judgment.

Orders