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Hitchcock v Murphy

Hitchcock v Murphy

Case [2020] NZHC 2207 28 August 2020

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000524

[2020] NZHC 2207

BETWEEN
STEPHEN LESTER HITCHCOCK

Applicant

AND

SUSAN KERRIE MURPHY

Respondent

Hearing: 13 August 2020

Appearances:

C Baker for the Applicant

B J Lupton and K E Hogan for the Respondent

Judgment:

28 August 2020

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 28 August 2020 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Price Baker Berridge, Auckland Insight Legal Ltd, Auckland

HITCHCOCK v MURPHY [2020] NZHC 2207 [28 August 2020]

[1] The applicant, Mr Hitchcock, applies for an order under s 143 of the Land Transfer Act 2017 (the LTA) that caveat 11425446.1 (the Caveat) not lapse. The Caveat is lodged against the land contained in Record of Title NA20A/1228 (the Property) owned by the respondent, Ms Murphy. Mr Hitchcock claims that he has an interest in the Property capable of supporting the Caveat on at least two alternative bases:

(a)An oral agreement for the sale and purchase of part of the Property and the equitable doctrine of part-performance; and

(b)A constructive trust arising from contributions made by Mr Hitchcock to the development of the Property, where he had a reasonable expectation of receiving an interest in the Property.

[2] Ms Murphy opposes the order being made. She contends that the nature of her relationship with Mr Hitchcock is one of debtor/creditor.

[3] Prior to the hearing, Ms Murphy gave notice to cross-examine Mr Hitchcock as of right under r 9.74 of the High Court Rules 2016. Mr Hitchcock was produced and cross-examined.

Factual background

[4] In November 1973, Ms Murphy and her then husband became the owners of the Property. Following her divorce, Ms Murphy became the sole owner in July 1990 after buying out her ex-husband’s share. The Property is 10 acres of relatively flat pasture. The front part of the Property has been divided into five paddocks — four small and one large. The rear part of the Property has been divided into two large paddocks. Ms Murphy’s house is located at the front part together with a barn and a small cottage.

[5] Mr Hitchcock and Ms Murphy are siblings. Since about 2003, Mr Hitchcock started residing at the Property. In 2003, Mr Hitchcock paid Ms Murphy’s outstanding mortgage repayment after she suffered a cancer scare. Ms Murphy says the money was regarded as a loan. There is some disagreement about the amount loaned in the

affidavit evidence of Mr Hitchcock and Ms Murphy. Ms Murphy says she was loaned
$147,262.16, whereas Mr Hitchcock says the sum was $187,000. At the hearing Mr Hitchcock said that he did not dispute Ms Murphy’s figure of $147,262.16.

[6] In 2004, Mr Hitchcock assisted Ms Murphy with the renovation of her house. Ms Murphy maintains that Mr Hitchcock loaned her the money to pay for the renovation, and it was understood between them that she…

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 [2020] NZHC 2207
Case: [2020] NZHC 2207
Decision Date: 28 August 2020

CaseChat Overview and Summary

The applicant, Mr Hitchcock, sought an order under section 143 of the Land Transfer Act 2017 that a caveat he lodged against property owned by the respondent, Ms Murphy, not lapse. Mr Hitchcock claimed that he had an interest in the property capable of supporting the caveat, based on either an oral agreement for the sale and purchase of part of the property and the equitable doctrine of part performance, or a constructive trust arising from contributions made to the property. Ms Murphy opposed the order, contending that the nature of her relationship with Mr Hitchcock was one of debtor/creditor. The central issue before the Court was whether Mr Hitchcock had established a reasonably arguable case that he had an interest in the property sufficient to support the caveat. The Court found that Mr Hitchcock had not demonstrated that there was a concluded oral agreement for the sale and purchase of the property, or that he had made contributions to the property that exceeded the benefit he received from living there rent-free. The Court also found that the doctrine of clean hands applied, as Mr Hitchcock had engaged in illegal activities on the property. Accordingly, the Court dismissed the application and ordered that the caveat lapse. Ms Murphy was awarded costs on a 2B basis.

Orders