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Lendich v Codilla

Lendich v Codilla

Case [2023] NZCA 222 9 June 2023

Resulting Trusts

Transfer of Property

Admissibility of Evidence

Intent to Retain Beneficial Interest

Property Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA191/2022
[2023] NZCA 222

BETWEEN	DANILO STANISLAV LENDICH Appellant
AND	ADRIAN CAMPANA CODILLA Respondent

Hearing:	16 February 2023
Court:	Katz, Whata and Davison JJ
Counsel:	P H Thorp for Appellant N P Tetzlaff for Respondent
Judgment:	9 June 2023 at 10:00 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BOrder that caveat 12225785.1 lodged by Mr Lendich on record of title NA52A/443 shall lapse.
CThe appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________

REASONS OF THE COURT

(Given by Davison J)

Table of Contents

Para No

Introduction

Law

Resulting trusts

Factual background

Hailes Road
Fred Taylor Drive — the property
Mr Posa’s will
Mr Lendich offers to buy 188 Fred Taylor Drive

High Court judgment

Further proceedings

Submissions

The appellant
The respondent

Discussion

Did Mr Posa provide consideration for the property_Toc131426504? [83]
The intention of Mr Lendich
The close personal relationship between Mr Lendich and Mr Posa
The Hailes Road agreement for sale and purchase
The 188 Fred Taylor Drive transaction
Subsequent conduct of Mr Lendich and Mr Posa
Mr Posa’s instruction to Mr Codilla regarding sale of the property

Conclusion

Result

_Toc131426512

Introduction

Mr Danilo Lendich (the appellant) appeals the decision of Associate Judge Sussock declining his application for an order that a caveat he lodged on 27 August 2021 on the title of a property situated at 188 Fred Taylor Drive, Whenuapai West Auckland (the property), not lapse.[1]
[1]Lendich v Codilla [2022] NZHC 758 [High Court judgment].
Just over forty years ago in July 1982, Lendich Heavy Equipment Limited (LHEL) transferred the 188 Fred Taylor Drive property to a long-term company employee, Mr Tihomir Posa. At that time the appellant was the governing director of the company and he and his wife were the shareholders of LHEL. As well as being employed by Mr Lendich’s business, Mr Posa was also a close personal friend of his. The transfer was proposed and implemented by Mr Lendich in his role as governing director of LHEL. Consideration for the transfer was one dollar, receipt of which was acknowledged in the memorandum of transfer.
Mr Posa died on 2 October 2018, and Mr Adrian Codilla (the respondent) is the executor of his deceased estate.
Mr Lendich claims an interest in the property under a resulting trust. He says that it was never his intention that Mr Posa would become the beneficial owner of the property and be able to sell it or bequeath it. He says that he only effected the transfer to provide Mr Posa with somewhere to live for the rest of his life, and to enable him to use the property as security for any borrowing he wished to undertake.
The respondent opposes Mr Lendich’s appeal against Associate Judge Sussock’s order that the caveat is to lapse, and disputes Mr Lendich’s claim that he has an interest in the…

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 Lendich v Codilla

Details

AGLC: Lendich v Codilla [2023] NZCA 222
Case: [2023] NZCA 222
Decision Date: 9 June 2023 at 10:00 am

CaseChat Overview and Summary

Danilo Stanislav Lendich (the appellant) appeals the decision of Associate Judge Sussock declining his application for an order that a caveat he lodged on 27 August 2021 on the title of a property situated at 188 Fred Taylor Drive, Whenuapai West Auckland (the property), not lapse.[1] The property was purchased by Lendich Heavy Equipment Limited (LHEL), of which the appellant was the governing director, and transferred to Mr Tihomir Posa in July 1982. Mr Posa died on 2 October 2018 and Mr Adrian Codilla (the respondent) is the executor of his deceased estate. The appellant claims an interest in the property under a resulting trust. He says that it was never his intention that Mr Posa would become the beneficial owner of the property and be able to sell it or bequeath it. He says that he only effected the transfer to provide Mr Posa with somewhere to live for the rest of his life, and to enable him to use the property as security for any borrowing he wished to undertake. The respondent opposes the appeal and disputes the appellant's claim that he has an interest in the property under a resulting trust. The Court of Appeal dismissed the appeal and ordered that the caveat lodged by the appellant be removed. The Court found that it was not reasonably arguable that the appellant intended to retain a beneficial interest in the property for himself or LHEL. The Court found that the appellant's evidence regarding his intention was implausible and that there was no evidence that he had discussed with Mr Posa that the property was to be returned to him. The Court found that the appellant's actions following Mr Posa's death were inconsistent with him believing that he was the beneficial owner of the property. The Court found that the circumstances did not give rise to the existence of a resulting trust.

[1] Lendich v Codilla [2022] NZHC 758 [High Court judgment].

Orders