Heeman v Harvey - [2018] NZHC 445

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-000010

[2018] NZHC 445

UNDER Sections 145 and 145A Land Transfer Act 1952

BETWEEN

DARREN HEEMAN and DEANNA MARIA HEEMAN

Plaintiffs

AND

GLENN RAYMOND HARVEY

Defendant

Hearing: 14 March 2018

Appearances:

S J Zindel for Plaintiffs M Keall for Defendant

Judgment:

15 March 2018

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] The plaintiffs apply for an order that Caveat 11009733.1 on Identifier NL686587 (Nelson Registry) not lapse. By their caveat the plaintiffs claim an interest in the land in Identifier 686587 by virtue of three agreements dated 19 July 2002, 22 June 2009 and 8 June 2015. Their interest is said to be in a portion of the land in the Identifier of approximately two hectares which they previously owned as tenants in common with the defendant.

[2] The Identifier in question is one of three Identifiers which comprised a property owned by the plaintiffs and the defendant. Ownership rights in all three identifiers have been determined by a final judgment of this Court dated 7 September 2017. The Court ordered the present plaintiffs to transfer two of these identifiers, including Identifier 686587, to the defendant. Transfers have been effected in accordance with

HEEMAN v HARVEY [2018] NZHC 445 [15 March 2018]

this judgment. Although the judgment is under appeal no application was made for it to be stayed.

[3] The effect of the judgment is that the Court has determined that the present plaintiffs do not have any interest in the land in Identifier 686587. Notwithstanding this the plaintiffs have lodged a caveat to protect what they claim to be an interest in this land, which Mr Zindel their counsel describes thus:

It is claimed to be a present interest which has yet to be upheld, not the
contingent interest dependent on the plaintiffs winning their appeal …

[4] The application was called before me in the Nelson Civil List on 14 March. The case was stood down to 2.15 pm that day for argument. Both counsel had filed written submissions before the List call. At the conclusion of argument I made an order sustaining the caveat until further order of the Court, to allow for preparation and release of this judgment.

[5] The thrust of the argument for the defendant is that the issue of ownership of the land in Identifier 686587 is res judicata. In Kidd v van Heeren, Fogarty J described res judicata thus:1
A res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all the fundamental matters decided so that, except on appeal, they cannot be relitigated between the persons bound by the judgment.

[6] Mr Zindel argues that because of the reference to an exception where there is an appeal, no res judicata arises. That misconstrues what the learned Judge says. The exception leaves it open to the parties…

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 Heeman v Harvey

Details

AGLC: Heeman v Harvey [2018] NZHC 445
Case: [2018] NZHC 445
Decision Date: 15 March 2018

CaseChat Overview and Summary

The case of Heeman v Harvey involves the plaintiffs, Darren Heeman and Deanna Maria Heeman, applying to prevent a caveat from lapsing, which they had lodged to protect their claimed interest in a portion of land. The defendant, Glenn Raymond Harvey, opposes the application, arguing that the plaintiffs' claim to the land is barred by the principle of res judicata. The land in question, Identifier 686587, is part of a property previously owned jointly by the plaintiffs and the defendant. The ownership rights in the property were previously determined by a final judgment of the High Court of New Zealand, which ordered the plaintiffs to transfer two of the three Identifiers, including Identifier 686587, to the defendant. The plaintiffs have lodged a caveat to protect their claimed interest in the land despite the court's determination that they do not have such an interest.

The central legal issue in the case is whether the plaintiffs' caveat can be sustained under the Land Transfer Act 1952 given that the court has already determined they do not have an interest in the land. The court must decide if the plaintiffs' claim is precluded by the principle of res judicata, which prevents the same issue from being relitigated except on appeal. The defendant argues that the plaintiffs' claim is barred because the court has already decided the issue of ownership. The plaintiffs contend that their caveat should be sustained as it protects a present interest in the land, not a contingent interest dependent on the outcome of the appeal. The court must also determine whether the plaintiffs have established an arguable case that they have the interest they claim, as required under Section 137 of the Land Transfer Act 1952.

The court found that the plaintiffs' claim is indeed precluded by res judicata. The court held that the principle of res judicata applies and the issue of ownership of the land in Identifier 686587 is finally determined between the parties. The court determined that the plaintiffs' claim to the land has been conclusively decided against them by a previous judgment of the court, and the caveat cannot be sustained because the plaintiffs cannot assert an arguable case that they have the interest they claim. The court emphasized that the plaintiffs had the opportunity to apply for a stay of the judgment pending the determination of the appeal but failed to do so. The court concluded that the application to sustain the caveat was dismissed, and costs were reserved pending further orders.

In conclusion, the court dismissed the plaintiffs' application to sustain the caveat and held that the principle of res judicata precludes the plaintiffs from relitigating the issue of ownership of the land in Identifier 686587. The court found that the plaintiffs' claim is barred because the court has already determined that they do not have an interest in the land. The caveat was therefore not sustained, and the plaintiffs' application was dismissed.

Orders