Jones v Beckett

[2024] NZHC 1390

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2024-488-000013

[2024] NZHC 1390

UNDER

the Land Transfer Act 2017 and High Court Rules 2016

BETWEEN

VALERIE ROBYN JONES

Applicant

AND

MAURICE MIDDLETON BECKETT

Respondent

Hearing:

28 May 2024

Appearances:

B Westenra for the Applicant

No appearance by or for the Respondent

Judgment:

29 May 2024

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 29 May 2024 at 3.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Wills Westenra Ltd, Whangarei

JONES v BECKETT [2024] NZHC 1390 [29 May 2024]

Introduction

[1]    This is an application by Valerie Jones for an order that a Notice of Claim of Interest pursuant to the Property (Relationships) Act 1976 (PRA) over the title to the property at 17 Handley Place, Onerahi, Whangarei, not lapse. The registered owner of the property is Maurice Beckett, Ms Jones’ former de facto partner. Ms Jones registered the Notice of Claim of Interest in 2008 after she and Mr Beckett separated.

[2]    On 23 February 2024 Ms Jones’ lawyers received a notice from Land Information New Zealand advising that Mr Beckett had applied to lapse the Notice of Claim of Interest.

[3]    Ms Jones applies for an order that her Notice of Claim of Interest not lapse so that her claimed interest in the property is protected.

[4]Mr Beckett was served with Ms Jones’ application on 7 March 2024.

[5]    At the call of the application, Gordon J made an order adjourning the application for hearing and directing Mr Beckett to file and serve a notice of opposition and any affidavit in opposition by 22 March 2024.1 A copy of that minute was served on Mr Beckett on 9 March 2024.

[6]    Mr Beckett has not filed or served a notice of opposition or affidavit. The hearing proceeded by way of formal proof.

[7]    This judgment records the orders I made at the conclusion of the hearing and gives my reasons.

Legal Principles

[8]    A claim to an interest pursuant to the PRA in any land subject to the Land Transfer Act 2017 (LTA) is deemed by s 42(1) of the PRA to be a registerable interest under the LTA. Section 42(3) of the PRA states that, subject to certain differences,

1      Minute of Gordon J, 8 March 2024.

any notice of claim “shall have effect as if it were a caveat lodged pursuant to section 138 of the Land Transfer Act 2017”.

[9]    The principles relevant to an application to sustain a caveat are well-established. The onus is on the claimant to show that they have a reasonably arguable case for the interest claimed.2 Even if a reasonably arguable case to sustain the relevant interest is established, the court may nevertheless make an order for removal where it is satisfied that removal would not prejudice the claimant’s interest.3 These principles apply equally to an application to remove a Notice of Claim of Interest under the PRA.4

Assessment

[10]   I  am  satisfied  that  Ms  Jones  has  a  reasonably  arguable  interest  in      17 Handley Place as relationship property.

[11]   On 16 November 2007, Ms Jones and Mr Beckett entered into a Separation and Relationship Property Agreement. The Agreement records that Ms Jones and  Mr Beckett had lived together in a de facto relationship since 2000 but intended to separate. The Agreement describes 17 Handley Place as the “family home” and as “relationship property”.

[12]   It was agreed that Ms Jones would transfer to  Mr Beckett her half share in  17 Handley Place in consideration for a payment of $60,000 within 10 working days of the signing of the Agreement (cl l.2(a)) and a further payment of 8.8 per cent of the value of the home when Mr Beckett sold the home or when he died, whichever occurred first (cl 1.2(b)).

[13]   Ms Jones has sworn an affidavit confirming that she has not received payment pursuant to cl 1.2(b) of the Agreement.

2      Botany Land Development Ltd v Auckland Council [2014] NZCA 61 (2014), 14 NZCPR 813 at [24]. See also Philpott v Noble Investments Ltd [2015] NZCA 342.

3      Pacific Homes Ltd (in rec) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA) at 656.

4      SM v ASB Bank Ltd [2012] NZCA 103, (2012) NZCPR 302 at [35].

[14]   Therefore, I am satisfied that it is reasonably arguable that her interest in the property continues to exist.

Result

[15]I order that the Notice of Claim of Interest registered over the title to

17 Handley Place, Onerahi, Whangarei, contained and described in Identifier NA31A/1436 not lapse.

[16]   I see no reason to depart from the usual principle that the party who fails pays the costs of the party who succeeds. I note that Mr Beckett was given the opportunity to withdraw his application to have the Notice of Claim lapse before Ms Jones filed her application, but he elected not to do so.

[17]   I therefore order that Mr Beckett pays Ms Jones the sum of $5,721.00, comprising costs calculated on a 2B basis and disbursements:

(a)$2,390.00 for filing the originating application and affidavit (1 day);

(b)$478.00 for filing a memorandum for the call over (0.2 day);

(c)$478.00 for appearing at the call over (0.2 day);

(d)$597.50 for preparing submissions (0.25 day);

(e)$597.50 for appearing at the formal proof hearing (0.25 day); and

(f)$540.00 for the filing fee and $640.00 for the hearing fee.

Associate Judge Gardiner