Harvey v Gateshead Investments Ltd
[2012] NZHC 1059
•17 May 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-5909 [2012] NZHC 1059
UNDER the Property Law Act 2007 and the Credit
Contracts and Consumer Finance Act 2003
BETWEEN CHRISTOPHER MICHAEL HARVEY First Plaintiff
ANDRACHEL SUSAN HARVEY Second Plaintiff
ANDRICHARD JAMES PARKER Third Plaintiff
ANDGATESHEAD INVESTMENTS LIMITED First Defendant
ANDPARANUI PROPERTIES LIMITED Second Defendant
ANDBETA PACIFICA CORPORATION LIMITED
Third Defendant
Hearing: 16 April 2012
Counsel: LAB Kemp for first and second plaintiffs
GJ Toebes for first and second defendants
Judgment: 17 May 2012
JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for summary judgment]
Solicitors: Kemp Barristers & Solicitors, PO Box 600, Auckland 0841
JTLaw, PO Box 25 443, Wellington 6140
HARVEY V GATESHEAD INVESTMENTS LIMITED HC AK CIV 2011-404-5909 [17 May 2012]
The application
[1] The first and second defendants apply for summary judgment against the first and second plaintiffs in respect of the counterclaim filed on 25 November 2011.
[2] The counterclaim seeks orders:
(a) Declaring a relationship property agreement dated 16 December 2009 between the second plaintiff and her deceased husband, Michael George Harvey, void;
(b)Vesting a property at 1033 Coatesville-Riverhead Highway, Auckland in the second plaintiff by survivorship; and
(c) Removing a notice of claim under the Property (Relationships) Act
1976 registered number 8735335.1 from the title of the property at
1033 Coatesville-Riverhead Highway, Auckland.
[3] The application proceeds as a plaintiff ’s claim for summary judgment and pleads that the plaintiffs have no defence to the cause of action pleaded in the counterclaim. It further pleads reliance on ss 42, 47(1) and 47(2) of the Property (Relationships) Act, the law of survivorship and s 143 of the Land Transfer Act
1952.
[4] The application relies on affidavits used in earlier applications as well as an affidavit prepared specifically for the application for summary judgment.
[5] No casebook of pleadings was filed. Neither counsel took objection, however, to the material that was referred to in their respective submissions.
The opposition
[6] The notice of opposition pleads that the plaintiffs have an arguable defence to the first and second defendants’ counterclaim. It refers to the statement of defence to the counterclaim. It refers to affidavits filed in the proceedings without identifying them. It, unfortunately, does not state precisely the grounds of opposition. It does, however, refer to ss 20, 20B, 20D, 20E, 21A, 47(1) and (2) and the common law regarding severance of a joint tenancy in land.
The issues
[7] The principal issues raised by this application are the following:
(a) Was a relationship property agreement entered into by the second plaintiff with her now deceased husband, Michael George Harvey, void having regard to the operation of either s 47(1) or 47(2) of the Property (Relationships) Act 1976;
(b)Was the second plaintiff, immediately prior to the death of the late Michael George Harvey, a joint tenant with the late Michael George Harvey in 1033 Coatesville-Riverhead Highway, Auckland with the result that the second plaintiff acquired the title to that property by survivorship.
The Court’s approach to a summary judgment application
[8] Part 12 of the High Court Rules deals with applications for summary judgment. Rule 12.16 provides that rr 12.1 to 12.15 apply with all necessary modifications to counterclaims.
[9] Rule 12.2 of the High Court Rules requires that a plaintiff satisfy the Court that a defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action. The obligations imposed by the rule have been examined by a number of authorities.
[10] The correct approach to an application for summary judgment by a plaintiff was recently summarised in Krukziener v Hanover Finance Ltd where the Court said:1
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: Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11
PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
[11] In Pemberton v Chappell the Court also commented on the position where a
defence is not evident on a plaintiff’s pleading and said:2
If a defence is not evident on the plaintiff’s pleading I am of opinion that if the defendant wishes to resist summary judgment he must file an affidavit raising an issue of fact or law and give reasonable particulars of the matters which he claims ought to be put in issue. In this way a fair and just balance will be struck between a plaintiff’s right to have his case proceed to judgment without tendentious delay and a defendant’s right to put forward a real defence.
[12] That position was further reinforced in Australian Guarantee Corporation
(New Zealand) Ltd v McBeth where the Court said:3
Although the onus is upon the plaintiff there is upon the defendant a need to provide some evidential foundation for the defences which are raised. If not, the plaintiff’s verification stands unchallenged and ought to be accepted unless it is patently wrong
[13] Hypothetical possibilities in vague terms, unsupported by any positive assertion or corroborative documents will not frustrate the obligation on a plaintiff to
discharge the onus of proof: SH Lock (NZ) Ltd v Oremland.4
1 Krukziener v Hanover Finance Ltd [2008] NZCA 187 (CA) at [26], [2010] NZAR 307.
2 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3.
3 Australian Guarantee Corporation (New Zealand) Ltd v McBeth [1992] 3 NZLR 54 (CA) at 59.
4 SH Lock (NZ) Ltd v Oremland HC Auckland CP641/86, 19 August 1986.
[14] In Middleditch v New Zealand Hotel Investments Ltd, the Court raised a caution and said:5
The courts must of course be alert to the possibility of injustice in cases in which some material facts to establish a defence are not capable of proof without interlocutory procedures such as discovery and interrogatories. That does not mean that defendants are to be allowed to speculate on possible defences which might emerge but for which no realistic evidential basis is put forward.
[15] A court is not required to accept uncritically any or every disputed fact: Eng Mee Yong v Letchumanan.6 However, the Court will not reject even dubious affidavit evidence, even if there is suspicion as to the good faith of the deponent, if there is an essential core of complaint that supports a defence. In essence, the inquiry is whether or not the person’s assertion passes the threshold of credibility: Pemberton v Chappell;7 Orrell v Midas Interior Design Group Ltd.8
[16] In Tilialo v Contractors Bonding Ltd it was observed:9
Drawing the line between mere assertions of possible defences and material which sufficiently raises an arguable defence so that the defendant should not be denied the opportunity to employ interlocutory procedures and have a trial is a matter of judgment. Views may well differ.
Background
[17] The first plaintiff is the executor of the late Mr Michael George Harvey’s will
dated 5 November 2010. The late Mr Harvey purchased a property at
1033 Coatesville-Riverhead Highway, Auckland with his wife, the second plaintiff, in 2001.
[18] The late Mr Harvey and the second plaintiff lived in the Coatesville property until Mr Harvey died on 3 February 2011.
5 Middleditch v NZ Hotel Investments Ltd (1992) 5 PRNZ 392 (CA) at 395.
6 Eng Mee Yong v Letchumanan [1980] AC 331 (PC).
7 Pemberton v Chappell, above n 2.
8 Orrell v Midas Interior Design Group Ltd (1991) 4 PRNZ 608 (CA) at 613.
9 Tilialo v Contractors Bonding Ltd CA50/93, 15 April 1994 at 6.
[19] The first and second defendants provided loan finance to rest home companies on 16 February 2006. The loans were jointly and severally guaranteed by the second and third plaintiffs and a Mr Pullman. Mr Pullman was adjudicated a bankrupt on 3 November 2009.
[20] A default under the loan agreement occurred. Demand was served on the guarantors, including Mrs Harvey, on 18 November 2009.
[21] The first and second defendants issued summary judgment proceedings against the second and third plaintiffs on 26 November 2009. The proceedings were not defended. On 28 January 2010 judgment was entered against both second and third plaintiffs for $1,442,800 plus interest and costs.
[22] On 22 November 2009 solicitors acting for the second plaintiff sent a proposal to solicitors acting for the first and second defendants. Its terms are privileged and quite properly were not revealed to the Court. Without any objection what was revealed to the Court was a statement of the second plaintiff’s financial position. That statement recorded the second plaintiff’s assets as including a half- share in the Coatesville-Riverhead property, interests in certain shares, interests in vehicles and it recorded liabilities. It also recorded interests in shares in Radius Property Ltd which were unsalable for five years, and a contingent liability to the Inland Revenue Department for Autumn Lodge, Brooklands and Carrington of
$620,192.19.
[23] In circumstances not specifically revealed to me, the first and second defendants obtained and produced a letter dated 1 December 2009 from the solicitors acting for the second and third plaintiffs to the second and third plaintiffs. It refers to the summary judgment proceedings. It contains the statement:
Accordingly, we believe it is in your best interests as personal guarantors that all your energy and resources must now be directed to protecting your personal position.
[24] The late Mr Harvey and the second plaintiff signed a property agreement dated 16 December 2009. It records in its recitals that:
The parties acknowledge that they expect their relationship to continue and wish to record their agreement in relation to the identification and division of their relationship property, separate property and assets and debts as described in the schedule (“property”) in terms of s 21 of the Property (Relationships) Act 1976.
[25] The agreement contains a clause requiring the parties forthwith to execute all transfers, assurances and other documents which, in short, are necessary to implement the agreement. Of particular importance to this case, the agreement provided that the house at 1033 Coatesville-Riverhead Highway, Auckland would be owned by the late Mr Harvey as his separate property.
[26] In summary, the late Mr Harvey was to receive the equity of the house, which was given a value of $228,626.38 and Radius shares which were given a value of
$453,982 for a total of $682,608.38 worth of property. The second plaintiff was recorded as receiving all the other company shares at a valuation of $668,999.76 and Radius shares of $13,000 for a total of $681,999.76. There were other incidental items that are mentioned in the Schedule that was basically designed to show that the parties were sharing equally in the assets. The company shares mentioned in the agreement are recorded in short form as:
Autumn $222,440.42
Brooklands $61,561.84
Carrington $161,686.50
Parakai $223,311.00.
The figures are, of course, the second plaintiff’s asset share or equity share in those companies. They are the rest home companies that are later referred to in this judgment.
[27] The first and second defendants registered a charging order against the title to the property at 1033 Coatesville-Riverhead Highway, Auckland on 9 February 2010.
[28] Two further developments occurred on 15 February 2010. The late Mr Harvey and Kemp Trustees Co (2010) Ltd established the Chrislo Trust. On the same day the late Mr Harvey, in his capacity as vendor, signed a sale and purchase contract under which he sold 1033 Coatesville-Riverhead Highway to himself and Kemp Trustees Co (2010) Ltd as trustees. The purchase price was $420,000. The
agreement provided for the payment of the purchase price on the settlement date, which was defined as 19 February 2010.
[29] It is common ground that that transaction was unable to be completed
because of the first and second defendants’ charging order.
[30] Other enforcement action was taken against the second plaintiff’s assets, which resulted in the sale of shares in Radius Properties Ltd. That left a debt owing in excess of $1.1 million.
[31] I have already referred to the late Mr Harvey’s death on 3 February 2011. His will, which has been admitted to probate, leaves his assets to the Chrislo Trust subject to a life interest in 1033 Coatesville-Riverhead Highway, to the second plaintiff, subject to certain conditions. The effect of the trust and the will is that the children of the late Mr Harvey have become the final beneficiaries by virtue of the definition of the term “final beneficiaries” in the declaration of trust. They therefore are the persons who have a very real interest in the outcome of this proceeding.
[32] The first plaintiff next registered a notice of claim of interest pursuant to the Property (Relationships) Act 1976 on 14 April 2011 against the title to the property at 1033 Coatesville-Riverhead Highway, Auckland. The interest claimed in that notice of interest was said to be:
The undivided one-half share held by Rachel Susan Harvey pursuant to the
Property (Relationships) Act.
[33] On 21 July 2011 the first and second defendants sealed a sale order in respect of the interest of the second plaintiff in the property at 1033 Coatesville-Riverhead Highway.
[34] On 23 September 2011 the plaintiffs issued this proceeding. At the same time, an application for interim injunction was filed. The substantive relief sought by the plaintiffs in this proceeding is summarised in paragraph 5 of a judgment of Brewer J which was given in respect of the application for an interim injunction.10
The relief sought was an order prohibiting any advertising and sale of
1033 Coatesville-Riverhead Highway and halting certain other proceedings, pursuant to the Insolvency Act 2006.
[35] The application was declined in a judgment delivered on 25 November 2011. It is currently the subject of an appeal. To a certain extent the plaintiffs have obtained some relief. On an application requesting orders pending the appeal Priestley J ordered in a judgment delivered on 14 February 2011 that a sale on the instructions of the sheriff at Auckland not proceed.11 He also made a number of additional orders, all of which were designed to ensure the speedy determination of the appeal.
[36] On 25 November 2011 the first and second defendants filed a statement of defence and counterclaim. In the counterclaim relief was sought as follows:
(a) Declaring the relationship property agreement void;
(b)Vesting the entire estate in fee simple in the property in the second plaintiff by survivorship; and
(c) Removing registration from the title to the property of the notice of claim under the Property (Relationships) Act 1976 and costs.
The statement of defence and counterclaim was accompanied by the application for summary judgment that is the subject of this judgment.
[37] At the conclusion of the hearing on 16 April 2012, I gave directions for the filing, by counsel, of memoranda dealing with the issue of severance of the joint tenancy. Counsel have now filed same, with the reply memorandum being filed on
7 May 2012.
The issues analysed
[38] In the stay judgment Priestley J referred to the three possible outcomes in relation to the Coatesville property and said:12
The three outcomes are:
a)That (the relationship property agreement being void) the Coatesville property passed in its entirety to Mrs Harvey by virtue of her survivorship. Thus the entire property (worth somewhere between $400,000—$450,000) is available, pursuant to the charging order which has been registered against the title, to satisfy part of the judgment debt.
b)That a combination of the executor’s rights under the Property (Relationships) Act and the agreement being void might result in the Coatesville property being owned as to half by the late Mr Harvey’s estate and as to the other half by Mrs Harvey with the result that only 50% of the value of the property would be available to satisfy the judgment debt.
c)That the property agreement is valid and the transfer to the deceased’s sole name is unimpeachable, with the result that none of the Coatesville property can be validly subject to the charging order and the entire property passes to the Trust pursuant to Mr Harvey’s will.
The relationship property agreement
[39] Mr Toebes submitted that the relationship property agreement, dated
16 December 2009 is void having regard to either s 47(1) or (2). Sections 47(1) and
(2) provide:
47. Agreements to defeat creditors void
(1) Any agreement, disposition, or other transaction between spouses or partners with respect to their relationship property and intended to defeat creditors of either spouse or partner is void against those creditors and the Official Assignee.
(2) Any such agreement, disposition, or other transaction that was not so intended but that has the effect of defeating such creditors is void against such creditors and the Official Assignee during the period of 2 years after it is made, but only to the extent that it has that effect.
[40] He submitted that if the relationship property agreement is void, the property at 1033 Coatesville-Riverhead Highway remains vested in the joint names of the late Mr Harvey and the second plaintiff, subject to a mortgage to the National Bank and the charging order registered by the first and second defendants. He next submitted that on Mr Harvey’s death his interest in the property by operation of law is transmitted to Mrs Harvey’s name, subject to the mortgage and the charging order. This submission, in fact, rolls together the two issues that I have identified in [7]. It is necessary, however, to look at the two issues separately.
[41] The rest homes companies were put into receivership on 4 December 2009 by Beta Pacifica Corporation Ltd which, as a result of an assignment, was the first mortgagee of the rest home companies.
[42] By letter dated 1 December 2009 the solicitors acting for the second plaintiff advised of problems with the first mortgage, including attempts to sell the rest homes by tender. The same letter drew attention to an application by the Inland Revenue Department to place the rest home companies into liquidation. It advised that that application was to be heard on 27 January 2010. In fact, each of the rest home companies that operated the rest home businesses was placed into liquidation on
27 January 2012 on the application of the Inland Revenue Department. Two of the property-owning companies were not put into liquidation. They are, however, in receivership.
[43] Mr Toebes submitted that the relationship property agreement of
16 December 2009 gave away to her husband the only assets that she had which had any value with no corresponding transfer from him. That is because the shares in the rest home companies that I have referred to in [26] had little or no value. That is because the companies were in receivership and, in some cases were about to be put into liquidation. I do not overlook the valuation evidence relied upon by the second plaintiff. I was not taken specifically to it by Mr Kemp but I have considered the reports of Barker & Morse Ltd, registered valuers and property consultants in respect of the three rest home enterprises. The valuations undertaken were prior in time to the agreement. There were valuations of land and buildings for the land-owning companies. There were valuations of the businesses for the companies which ran the
business of the rest home. Nowhere in the papers, however, is there a share valuation of each of the rest home companies. If such valuation had been undertaken, then the respective debts of each of the rest home companies would have to have been taken into account. I cannot therefore see any justification for disregarding the debts which each of the rest home companies had for the purpose of ascertaining a value of the second plaintiff’s shareholding in each of those companies. At the end of the day, the ultimate exercise comes back to the question of whether or not at the time of the relationship property agreement, the second plaintiff’s shares in each of those companies was significantly less than the figure ascribed to them in the agreement, with the result that there was no proper consideration for the properties that were transferred pursuant to it.
[44] I summarise from the authorities some general principles that apply to the application of s 47 of the Property (Relationships) Act 1976 which I consider are helpful in the determination of the first issue. They are:
(a) The relevant time for considering the two possibilities under s 47 is the date of the agreement;13
(b)What is required is an overall assessment of the agreement at the time it was entered into in order to determine whether or not it then had the effect of defeating any present or future creditors;14
(c) The creditor must challenge the agreement within two years of the date of the agreement;15
(d)The assets that are lost to the creditors must be the ones to which the creditors would have had access had it not been for the agreement;16
and
13 Neill v Official Assignee [1995] 2 NZLR 318 (CA).
14 Ibid.
15 Felton v Johnson [2006] NZSC 31, [2006] 3 NZLR 475 at 21.
16 Walsh v Powell (1982) 5 MPC 180 at 182; also cited as W v P (1982) 1 NZFLR 103.
(e) The agreement will have the effect of defeating creditors if, and only if, the agreement moves property between the spouses in such a way as to deplete the resources of one spouse available to creditors.17
[45] The case for the first and second defendants is that the transfer of the interest of the second plaintiff in the house to Mr Harvey took that asset away from the possible assets that were available to satisfy the judgment that the first and second defendants had against the second plaintiff.
[46] Mr Toebes submitted that the result is that the relationship property agreement is nothing more than an agreement to divest Mrs Harvey of her assets of value. There is one consequence of that, and that is that it defeats the interests of her creditors and therefore falls within either s 47(1) or (2) of the Property (Relationships) Act 1976.
[47] Mr Kemp reviewed the judgment of Brewer J and sought to draw a distinction between the conclusion his Honour reached and the standard of proof that I must find before entering summary judgment. I immediately say that I am not assisted by that approach because I regard it as necessary to look at the case in its totality and not by reference to a finding on an interlocutory application.
[48] Mr Kemp then invited me to consider the debt position of the second plaintiff. He submitted that it was necessary to carry out a detailed accounting in respect of the rest home properties. That may well be so. It might establish a value of the shareholding in the companies. However, this seems to me to be pure speculation and quite devoid of the actual factual situation that involves companies that were in receivership and were later put into liquidation. That was the position that existed at the time the agreement was entered into.
[49] The difficulty from the second plaintiff ’s point of view is that in the material
before me I just do not have any foundation to suggest that at the time of the agreement, the second plaintiff was retaining a share portfolio to the value of the
17 Neill v Official Assignee, above n 13.
$668,999. The position of the companies lends no support for that conclusion or for anything like it.
[50] Mr Kemp next submitted that for the purposes of s 47(2) it was impossible to say that the agreement had the effect of depleting the second plaintiff’s assets available to meet the claims of creditors. Again, I cannot accept that submission. By transferring the home she transferred the only asset that appears to have been available to satisfy the claims of the first and second defendants.
[51] A further matter that Mr Kemp raised was the fact that in the proceeding proper, to which the counterclaim was filed, there is a claim against the first and second defendants for a sale of the security properties in breach of the obligation imposed on them by s 176 of the Property Law Act 2007. If that were the case it might conceivably lead to a position where there was some equity in the rest home companies, which in turn might show that the assets being retained by Mrs Harvey justified the transfer of the half-interest in the home. On the material before me I am unable to find a foundation for that.
[52] Out of an abundance of caution I have carefully studied the statement of defence to the counterclaim to see if there is anything in it, other than one matter that I will refer to separately – namely the question of severance – that might have been raised that might prove a direct answer to the claim that there has been a breach of s 47.
[53] There is a denial of intention to defeat creditors in the statement of defence to the counterclaim. The evidence that I have outlined, however, simply indicates that there is a proper foundation for the proposition that that is exactly what was intended by the relationship property agreement. It is impossible to depart from the view when one considers the timing of entry into the agreement, the advice given by the solicitors, the second plaintiff’s position vis-a-vis the creditors and the quite hopeless position that the companies were in.
[54] There is next a pleading that no creditor of the second plaintiff was prejudicially affected by the relationship property agreement. Once again, on the
facts placed before me that proposition has no foundation. By taking the house out of Mrs Harvey’s asset base, an asset was removed that would normally be available to satisfy her judgment debt.
[55] There are other pleadings raised to the effect that Mr Harvey and his estate were always entitled to 50 per cent of the relationship property, ie in this particular case, 50 per cent of the house. Further, it is pleaded that the challenge can only be made to the extent that it defeated the first and second defendants’ claim as a creditor of the plaintiff. I see no difficulty with those matters as general propositions. My finding that the agreement was in breach of s 47 leaves the second plaintiff’s interest in the home available for her creditors. The severance issue is a separate matter.
[56] There is next a pleading that there is a need to determine whether the second plaintiff’s debt to the first and second defendants is a relationship debt, because only relationship debt can be counted against relationship assets. As a proposition that is true. However, it seems to me that the second plaintiff’s position is confused. What I am required to do is to analyse the assets that were ascribed to her in the relationship property agreement. Those assets were essentially shares in companies that had to be valued. One cannot come to a valuation of those shares without taking into account the effect of the company debts. The company debts arise because the company has undertaken the obligations it has to its creditors. That is not to be confused with the guarantee obligation that was undertaken by the second plaintiff.
[57] Save for the question of severance, the above analysis leads me to the conclusion that there is no defence to the claim that the relationship property agreement was entered into in breach of s 47(1). I am satisfied, on the evidence that has been adduced, that the relationship property agreement was intended to defeat creditors. It had that effect immediately when it was entered into. The challenge to it has been brought within time. It is therefore void against the first and second defendants.
[58] I am also satisfied as an alternative justification for the conclusion just mentioned that the effect of the transaction in this case made it void against the creditors. Nothing has been placed before me to suggest that there could have been a
justification for the transfer of Mrs Harvey’s half-interest in the house to Mr Harvey having regard to the value of the shares held by Mrs Harvey in the property that she was to retain as her separate property.
Was the joint tenancy of 1033 Coatesville-Riverhead Highway, Auckland severed during the life time of the late Michael George Harvey?
[59] The late Mr Harvey had the power in his lifetime to determine the joint tenancy he held with the second plaintiff in the home, by severance.18
[60] The relationship property agreement is a mutual agreement between the parties. Its clear intention is to bring the joint tenancy to an end. There has been no severance at law because there has been no registration giving effect to severance under the Land Transfer Act 1952. However, it is arguable there has been a
severance in equity.19 Severance arises by the mutual agreement of the joint tenants.
[61] It is necessary to consider what the effect is of my finding that the agreement is void pursuant to s 47.
[62] In the case of s 47(2), that provision only voids the agreement to the extent that it has the effect of defeating creditors. At the time the agreement was signed the severance of the right of survivorship did not have the effect of defeating the first and second defendants’ interests as creditors of the second plaintiff. I therefore conclude it is arguable that s 47(2) does not provide a basis for concluding that severance of the right of survivorship as provided by the agreement was of no effect.
[63] I further consider it is arguable that although I have concluded that the agreement was intended to defeat creditors and is therefore void in respect of those creditors by the operation of s 47(1), such a finding still leaves an arguable possibility, and therefore a defence, that the joint tenancy was severed when the second plaintiff and her deceased husband entered into the agreement. According to s 47(1), the agreement is only void as against creditors, not as against the parties
themselves. So even if granting Mr Harvey the entire property was void, it does not
18 Fleming v Hargreaves [1976] 1 NZLR 123 (CA).
19 Ibid, at 126.
stop the agreement from being enforceable as between Mr Harvey and the second plaintiff regarding rights arising between themselves that do not affect creditors at the time the agreement was signed. That would include the implied termination of the joint tenancy at equity, which had no effect on the creditors’ claims until Mr Harvey died. Further, the purported transfer of Mr Harvey’s interest to a trust is also inconsistent with joint tenancy ownership, so that if the joint tenancy were not determined by virtue of the agreement, it could arguably have been determined on the purported transferral of the property by the sale and purchase agreement. These are issues that should be explored at trial rather than in summary judgment.
Conclusions in respect of the orders that I have referred to in [2](a) and [2](b)
[64] I conclude that the agreement that transferred the second plaintiff ’s interest in the property at 1033 Coatesville-Riverhead Highway, Auckland to the deceased, Michael George Harvey, was void and therefore of no effect.
[65] In respect of the counterclaim, I consider that it is arguable, and that there is therefore a defence available to the first and second plaintiffs that the right of survivorship in respect of the title to 1033 Coatesville-Riverhead Highway was severed at the time the relationship property agreement was signed, or at least by the subsequent actions taken by the deceased. Accordingly, I conclude it would not be appropriate to enter summary judgment in respect of the second order sought in the counterclaim. That is a matter that would have to be determined at trial.
The notice of claim
[66] The notice of claim is registered as a caveat pursuant to the Land Transfer Act 1952. The effect of my finding that the transfer provided by the Property (Relationships) Act 1976 was void against the creditors is that there can be no foundation for the notice of claim in respect of the late Mr Harvey’s estate’s claim to his wife’s interest in that property. Accordingly, it is appropriate that I order that the notice of claim be removed pursuant to s 143 of the Land Transfer Act 1952.
Orders
[67] Accordingly I order:
(a) Judgment is entered declaring the relationship property agreement dated 16 December 2009 between the second plaintiff and her husband, Michael George Harvey, void as against the first and second defendants;
(b) The notice of claim registered under the Property (Relationships) Act
1976 against the title to the property at 1033 Coatesville-Riverhead
Highway, Auckland shall be removed;
(c) The remaining issues in both the claim and the counterclaim require determination at trial. The Case Officer who has responsibility for this file shall schedule a case management conference and notify counsel for the parties accordingly. Counsel shall file and serve memoranda that cover the matters set out in Schedule 5 to the High Court Rules three working days before that conference.
Costs
[68] I reserve costs. There has been a measure of success on both sides. The case will have to proceed to trial in respect of the claim and in respect of part of the counterclaim. The ventilation of some of the issues involved in the remaining section of the proceeding will assist. I therefore consider that the appropriate course is to reserve costs on this application so that they can be determined at the conclusion of the proceeding.
Directions for future conduct of this proceeding (HCR12.12)
[69] The Registrar shall allocate a case management conference and advise counsel accordingly. Memoranda shall be filed and served covering the matters
listed in Schedule 5 to the High Court Rules four working days before the
conference.
JA Faire
Associate Judge
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