Huband v Wharepuke Property Limited - [2018] NZHC 2695

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-45

[2018] NZHC 2695

BETWEEN ROGER TERRENCE HUBAND and JILLIAN FLORENCE HUBAND
Applicants

AND

WHAREPUKE PROPERTY LIMITED

Respondent

Hearing: 15 October 2018 at 2:15pm

Appearances:

J F Armstrong for the Applicants P J Magee for the Respondent

Judgment:

15 October 2018

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Armstrong Murray (John Armstrong), Takapuna, for the Applicants Thomson Wilson (Peter Magee), Whangarei, for the Respondent

HUBAND v WHAREPUKE PROPERTY LIMITED [2018] NZHC 2695 [15 October 2018]

[1] The applicants apply to sustain caveat 11060515.1 lodged against the title of Wharepuke Property Ltd in identifier NA24B/1159. The interest claimed under the caveat is:

A claim by the caveator of a beneficial interest over part of the land of the registered proprietor of Wharepuke Property Limited in Certificate of Title NA24B/1159 affecting an area of approximately 3.4 hectares on the south- eastern boundary of allotment 4 Parish of Wairau CT NA50/245 being the caveator’s property and the north-western boundary of allotment 6 Parish of Wairau and s.w. part allotment 10 Parish of Wairau being land devised in CT NA2B/1159 in the name of the registered proprietor Wharepuke Limited as cestui que trust in which the registered proprietor Wharepuke Property Limited is trustee pursuant to an oral agreement between the registered proprietor and the caveator affecting part of the land as specified.

[2] This case is being decided under the Land Transfer Act 1952. The Land Transfer Act 2017 has not yet come into force.1

General principles on caveat applications

[3] In Holt v Anchorage Management Ltd, McMullin J stated the purpose of a caveat against dealings under the Land Transfer Act 1952:2

Once lodged, a caveat is notice to all who search the title to the land against which it is registered and to the registered proprietor of the land (to whom notice of its receipt is given pursuant to s 142) that the caveator claims the estate or interest the subject of the caveat. It is both a warning to the persons mentioned that the caveator asserts rights against the land and a protection of those rights. (Section 143(1) uses the phrase "protected by the caveat".) Once the caveat is lodged the Registrar is prohibited from making any entry on the register which has the effect of charging or transferring or otherwise affecting the estate or interest protected by the caveat (s 141).

[4] In caveat applications under ss 143, 145 and 145A of the Land Transfer Act, the caveator generally has the onus of showing a reasonably arguable case for the interest claimed. The interest must come within s 137(1) of the Act:

137 Caveat against dealings with land under Act

(1) Any person may lodge with the Registrar a caveat in the prescribed form against dealings in any land or estate or interest under this Act if the person—

1 Land Transfer Act 2017 Commencement Order 2018, cl 2.

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.

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Details

Case: [2018] NZHC 2695
Decision Date: 15 October 2018

CaseChat Overview and Summary

The applicants, Roger Terrence Huband and Jillian Florence Huband, applied to sustain a caveat lodged against the title of Wharepuke Property Limited in order to claim a beneficial interest over part of the land of the registered proprietor of Wharepuke Property Limited. The dispute concerns a give-and-take boundary fence that has been in place for over 40 years. The applicants claim that they have an interest in approximately 3.4 hectares of the Finlayson property. The applicants put their case for an interest in the land on two bases: an institutional constructive trust and equitable estoppel. Wharepuke Property Limited argued that the applicants have no interest in the disputed land. The court found that the applicants have an arguable case for a caveatable interest in the land under equitable estoppel. The court upheld the caveat, subject to conditions. The Hubands must promptly begin proceedings in the court to claim the interest they have claimed in their caveat and give an undertaking as to damages to protect Wharepuke Property Limited if the Hubands fail at trial. The court reserved costs, and the parties may come back if costs are required.

Orders