IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2227
[2024] NZHC 3607
IN THE MATTER OF a claim seeking an order for specific performance BETWEEN
STEPHEN LESTER HITCHCOCK
Plaintiff
AND
SUSAN KERRIE MURPHY
Defendant
Hearing: 6 and 7 May, and 25 July 2024 Appearances:
G J Thwaite for plaintiff
K E Hogan and B J Upton for defendant
Judgment:
29 November 2024
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 29 November 2024 at 3pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
G J Thwaite, Auckland Insight Legal, Warkworth
HITCHCOCK v MURPHY [2024] NZHC 3607 [29 November 2024]
[1] In 1971, Susan Murphy and her then husband bought just over four hectares (around 10 acres) on the Coatesville-Riverhead Highway, just north of Auckland (the Property). When the marriage dissolved, she bought out her husband’s share.
[2] The Property was subdivided in September 2021, into two, similarly sized lots. The rear two hectares (or five acres, which I refer to as the Back Half) was sold to third parties in June 2022. Ms Murphy remained living in a house on the front half of the Property, nearest the road.
[3] Ms Murphy’s brother, Stephen Hitchcock, has also lived at the Property, for extended periods commencing in 2003. By 2006, he had installed (amongst other things) a Portacom temporary building on the front portion of the Back Half. At times he resided there.
[4] Mr Hitchcock says that he spent money and did work on the Property, and therefore became entitled to an interest in the Property.
[5] Ms Murphy disagrees. She says that all Mr Hitchcock is entitled to is the money that she admits she owes him. She says the amount she owes Mr Hitchcock is much less than he claims. She says his conduct has been getting in the way of him being paid.
[6] Mr Hitchcock sues in this Court. His statement of claim is notable for the array of alternative claims it presents, set out across 13 causes of action.
Mr Hitchcock’s claims
[7] The key aspects of Mr Hitchcock’s various claims to an interest in the Property can be summarised as follows:
(a)Ms Murphy created an express trust, pursuant to which she held either the two-hectare Back Half,1 or the one-hectare front portion of the
1 Twelfth cause of action.
Back Half on which Mr Hitchcock’s Portacom stood (the Portacom hectare),2 on trust for Mr Hitchcock.
(b)Ms Murphy entered a written, or an oral, contract with Mr Hitchcock, pursuant to which she was obliged to transfer either the Back Half, or the Portacom hectare, to Mr Hitchcock.3
(c)Ms Murphy and Mr Hitchcock became partners in the development of the Property, pursuant to which either the Back Half,4 or the Portacom hectare,5 was to be allocated to Mr Hitchcock.
(d)In the circumstances, Ms Murphy held the Back Half,6 or the Portacom hectare,7 on constructive trust for Mr Hitchcock.
[8]…
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