Hitchcock v Murphy - [2021] NZCA 689

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA745/2020
[2021] NZCA 689

BETWEEN	STEPHEN LESTER HITCHCOCK Applicant
AND	SUSAN KERRIE MURPHY Respondent

Court:	Courtney and Goddard JJ
Counsel:	G J Thwaite for Applicant K E Hogan for Respondent
Judgment: (On the papers)	15 December 2021 at 11.30 am

JUDGMENT OF THE COURT

AThe application to set aside the abandonment of appeal in CA545/2020 is declined.
BThe applicant must pay costs to the respondent for a standard application on a band A basis, with usual disbursements.

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REASONS OF THE COURT

(Given by Goddard J)

Background

Mr Hitchcock, the applicant, is the brother of the respondent, Ms Murphy. Ms Murphy owns a 10-acre rural property in Auckland. Mr Hitchcock has lived at the property since 2003, with some periods of absence. Mr Hitchcock has at various times provided funds to Ms Murphy, though the basis on which he did so is in some respects contested. He has also undertaken work on the property, though the parties differ about the purpose of that work, whether it was done at Ms Murphy’s request or for her benefit, and also about its value.
Ms Murphy intends to subdivide the property and sell the subdivided sections. On 2 May 2019 Mr Hitchcock lodged a caveat against the title to the property. On 18 March 2020, a notice to lapse the caveat was issued.
On 25 March 2020, Mr Hitchcock filed an originating application in the High Court seeking an order under s 143 of the Land Transfer Act 2017 that the caveat not lapse. That application was dismissed by Associate Judge Gardiner (High Court caveat decision).[1]
[1]Hitchcock v Murphy [2020] NZHC 2207, (2020) 21 NZCPR 303 [High Court caveat decision].
On 25 September 2020 the Associate Judge made interim orders staying enforcement of her decision and sustaining the caveat, pending determination of a foreshadowed appeal to this Court. However on 30 September 2020 those interim orders were discharged, as the caveat had already lapsed following notice to the Registrar of the High Court caveat decision.
On 13 November 2020 Mr Hitchcock commenced proceedings in the High Court against Ms Murphy seeking orders for specific performance of an alleged agreement to subdivide the property and sell a 2.5-acre section to him, and in the alternative seeking a declaration of constructive trust over a 2.5-acre section of the property.

The appeal to this Court

On 24 September 2020 Mr Hitchcock filed a notice of appeal in this Court (CA545/2020) against the High Court caveat decision. However on 23 October 2020, Mr Hitchcock abandoned his appeal. A notice of result was issued on 27 October 2020.
Then on 22 December 2020, despite that earlier abandonment, Mr Hitchcock applied for an extension of time to appeal from the High Court caveat decision, under r 29A of the Court of Appeal (Civil) Rules 2005 (Rules). That application made no reference to the previous appeal, or to the abandonment of that appeal.
A…

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 Hitchcock v Murphy

Details

AGLC: Hitchcock v Murphy [2021] NZCA 689
Case: [2021] NZCA 689
Decision Date: 15 December 2021 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to consider an application by Stephen Lester Hitchcock to set aside the abandonment of an appeal against a decision of the High Court. The appeal was in relation to the dismissal of Mr Hitchcock's application under section 143 of the Land Transfer Act 2017 that a caveat against the title to a 10-acre rural property owned by Susan Kerrie Murphy not lapse. The appeal was abandoned by Mr Hitchcock's legal team on 23 October 2020, but Mr Hitchcock later applied to set aside the abandonment of appeal on 22 December 2020. Ms Murphy opposed the application.

The legal issues before the Court were whether the notice of abandonment could be set aside and, if so, whether the application was meritorious. The Court held that the notice of abandonment could only be set aside in compelling or exceptional circumstances, and the interests of justice must be considered in light of the importance of finality. The Court found that the abandonment of the appeal was consistent with Mr Hitchcock's instructions, and the appeal was futile as there was no power to reinstate a lapsed caveat. The Court concluded that the application to set aside the abandonment of appeal was not meritorious, and dismissed the application with costs.

The Court of Appeal declined the application to set aside the abandonment of appeal in CA545/2020. The applicant must pay costs to the respondent for a standard application on a band A basis, with usual disbursements.

Orders