Kereopa v Brunsha Limited - [2023] NZHC 3753

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-060

[2023] NZHC 3753

UNDER Section 143 of the Land Transfer Act 2017

IN THE MATTER OF

an application to sustain a caveat

BETWEEN

RANGIMONEHU KEREOPA

Applicant

AND

BRUNSHA LIMITED

Respondent

Hearing: 29 November 2023

Appearances:

No appearance for Applicant J Taylor for Respondent

Judgment:

18 December 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 18 December 2023 at 3.00 pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors:
Bylatus Legal, Hamilton

KEREOPA v BRUNSHA LTD [2023] NZHC 3753 [18 December 2023]

Introduction

[1] The applicant, Rangimonehu Kereopa, seeks an order sustaining her caveat registered against the title to 669 Wainui Road, Raglan (the Wainui Road property), owned by Brunsha Limited (Brunsha), a company associated with her son,
Dennis Kereopa, and his wife Heather Kereopa.1

[2] Rangimonehu maintains a strong connection to the Wainui Road property. It was originally Māori land. Rangimonehu and her husband Piripi Kereopa, now deceased, were the first registered owners of the Wainui Road property when it became general land. They remained the registered owners until 2002.

[3] In 1999, Rangimonehu and Piripi used the Wainui Road property as security for a bank loan to their daughter, Te Mania Kereopa, to enable Te Mania to purchase a property at 39B Government Road, Raglan (the Government Road property).

[4] In 2002, Rangimonehu and Piripi were in financial difficulty. Rangimonehu says that she agreed to transfer the Wainui Road property to Dennis and Heather, based on their agreement that they would hold the property for the benefit of the wider Kereopa whānau, including all of Rangimonehu and Piripi’s children.

[5]In 2002, Rangimonehu and Piripi entered into transactions which resulted in:

(a)the Government Road property being transferred to them; and

(b)the Wainui Road property being transferred to Dennis, Heather and their friend, William Waters.

[6] In 2008, Dennis, Heather and Mr Waters transferred the Wainui Road property to Brunsha. Dennis and Heather are directors and shareholders of Brunsha. Rangimonehu says that in about March 2022, she discovered that the Wainui Road property was on the market. That led her to instruct a lawyer, resulting in the caveat. Rangimonehu claims to be the beneficiary of a cestui que trust.

1 For convenience, I will refer to members of the Kereopa whānau by their first names.

[7]Rangimonehu’s application to sustain her caveat gives rise to two issues:

(a)Does Rangimonehu hold an interest in the land sufficient to support her caveat?

(b)Does the caveat contain an adequate description of the nature of the interest claimed by Rangimonehu and how that interest is derived from Brunsha?

Does Rangimonehu hold an interest in the land sufficient to support her caveat?

Background

[8] Rangimonehu has limited recall of the relevant events of 2002. She cannot recall exactly what documents were signed at the time. Rangimonehu says that Dennis and Heather’s solicitors, TFG Law, acted for all involved, and…

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: [2023] NZHC 3753
Decision Date: 18 December 2023

CaseChat Overview and Summary

Rangimonehu Kereopa has applied to sustain her caveat against the title to 669 Wainui Road, Raglan, which is owned by Brunsha Limited. Rangimonehu claims to hold a beneficial interest in the land as a cestui que trust, with Brunsha being the trustee. The primary issue before the court was whether Rangimonehu's interest was sufficient to sustain the caveat. The court also considered whether the caveat adequately described the nature of the interest claimed and its derivation from Brunsha. The court found that it was reasonably arguable that Rangimonehu held an interest in the land as a beneficiary of an institutional constructive trust, which could sustain the caveat. This was based on the circumstances surrounding the 2002 transfer of the property to Dennis, Heather, and William Waters, and the subsequent transfer to Brunsha in 2008. The court determined that Rangimonehu's caveat sufficiently described the nature of her claimed interest and its derivation from Brunsha, even though it did not expressly detail the 2002 transactions. The court ordered that the caveat would not lapse on the conditions that Rangimonehu file and diligently prosecute a substantive proceeding to establish her claim within 30 working days of the judgment. The respondent was granted leave to apply for an order that the caveat lapse if Rangimonehu fails to comply with the conditions. Costs were to be determined after submissions from the respondent.

Orders