[1] Mark Byrd was a loyal friend and a generous man. When his work colleague and friend, Ijan Beveridge, went to prison for eight years, Dr Byrd was a constant visitor. When Mr Beveridge was released, Dr Byrd provided him with the free use of a unit which Dr Byrd owned. But Dr Byrd did not make provision for Mr Beveridge in his will. When Dr Byrd died, his executors gave Mr Beveridge notice to vacate the unit. Mr Beveridge has caveated the title. Mr Beveridge refused to leave. He says that he is the beneficial owner of the unit.

The application

[2] The plaintiff (as executor of Dr Byrd’s estate) asks the Court to make two sets of orders by summary judgment:

HARVEY v BEVERIDGE [2013] NZHC 1718 [8 July 2013]

The possession orders

(a) That Mr Beveridge give up possession of the unit.

(b) That Mr Beveridge pay mesne profits at the rate of $350 per day from

24 January 2012 to judgment.

The caveat order

(c) That the caveat lodged by Mr Beveridge be removed.

The grounds of opposition

[3] There is no dispute as to the executor’s legal ownership of the unit. There is a single ground of opposition, namely that Mr Beveridge beneficially owned the unit by reason of a common intention constructive trust. Mr Beveridge says that the executor is not entitled to give him notice to vacate the unit. Mr Beveridge further says that, because a common intention constructive trust is an institutional trust (rather than a remedial trust), he has an interest in the unit which is caveatable.

The facts

[4] I will begin with a chronology of key events (which are relatively few) before turning to the defendant’s evidence as to statements Dr Byrd made and as to matters of common intention.

Chronology of key events

December 1991 – Dr Byrd buys the unit for his mother to occupy

1999 – Dr Byrd’s mother dies

1999 – Dr Byrd diagnosed with diabetes

3 September 1999 – Dr Byrd makes his last Will

1999-2008 – Dr Byrd makes the unit available to friends

July 2008 – Mr Beveridge leaves prison and initially occupies the unit as a non-rent-paying tenant or licensee

July 2008 to date – Mr Beveridge continues to occupy the unit

November 2008 – Dr Byrd falls and is rendered paraplegic

24 January 2012 – Dr Byrd dies

May 2012 – Mr Beveridge indicates an intention to make a testamentary promises claim

22 July 2012 – executor gives Mr Beveridge notice to vacate the unit by 7

October 2012

September/November 2012 – correspondence from Mr Beveridge and his

solicitor asserting a trust

What Mr Beveridge…

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 [2013] NZHC 1718
Case: [2013] NZHC 1718
Decision Date: 8 July 2013

CaseChat Overview and Summary

In the case of Harvey v Beveridge, the plaintiff, as executor of Dr Byrd's estate, sought summary judgment against the defendant, Ijan Beveridge, for possession of a unit, mesne profits, and the removal of a caveat. The defendant opposed the application, asserting a common intention constructive trust over the unit. The court was required to determine whether the defendant's claim was arguable and if the plaintiff had established that the defendant had no defence. The court found that the defendant had presented an arguable case for a common intention constructive trust over the unit, based on the evidence of Dr Byrd's statements and conduct. The court concluded that the plaintiff had not established that the defendant had no defence to the claim, and the defendant's claim was reasonably arguable. Therefore, the plaintiff's application for summary judgment was dismissed, and the defendant was to file a statement of defence within 10 working days. The costs of the plaintiff's application were reserved.

Orders