Lendich v Codilla - [2022] NZHC 758

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1885

[2022] NZHC 758

UNDER the Land Transfer Act 2017

IN THE MATTER

of an application for an order that a caveat not lapse

BETWEEN

DANILO STANISLAV LENDICH

Applicant

AND

ADRIAN CAMPANA CODILLA

Respondent

Hearing: 11 February 2022

Appearances:

PH Thorp for the Applicant N Tetzlaff for the Respondent

Judgment:

12 April 2022

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 12 April 2022 at 4.30pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
Davenports West Lawyers Ltd, Henderson, Auckland Gaze Burt, Albany, Auckland

PH Thorp, Auckland

LENDICH v CODILLA [2022] NZHC 758 [12 April 2022]

Introduction

[1] The applicant, Mr Lendich, applies for an order sustaining the caveat he has lodged over a property on Fred Taylor Drive. The property was in the name of Mr Posa, a long-time employee of the applicant.

[2] Mr Posa has died and his executor is the respondent, Mr Codilla. The executor opposes the application by Mr Lendich.

[3] There have already been High Court proceedings between Ms Nelson (allegedly Mr Posa’s de facto partner) and the executor and Mr Posa’s housekeeper, Ms Tenchavez, as to the shares in the estate, the main asset of which is the property.1 Mr Lendich did not participate in those proceedings.

[4] Mr Lendich now claims an interest in the property under a resulting trust. Mr Lendich says that the property was transferred to Mr Posa to allow him to obtain a mortgage in respect of the property but that it was never intended that he would have the right to sell the property.

[5] I discuss the requirements of a resulting trust in more detail below but central to those requirements is the absence of any expression of an intention to transfer the beneficial interest in the property.

[6] The caveat is lodged in Mr Lendich’s name personally. The evidence filed by Mr Lendich shows that the property was transferred to Mr Posa by Lendich Heavy Equipment Ltd, a company that was owned by Mr Lendich and his wife. That company ceased trading in 1988 and was struck off the Companies Register in 1990, assigning all of the assets and liabilities set out in its financial accounts to another company associated with Mr Lendich.

1 Nelson v Codilla [2021] NZHC 1958.

[7] Mr Lendich submits that equity looks to the substance and not the form and that the substance of the arrangement is that the arrangement was personal to the applicant as originally documented before being performed for Mr Lendich by his company.

[8] Counsel for Mr Lendich submits that if that is not accepted then Lendich Construction Ltd, who took an assignment of the assets of Lendich Heavy Equipment Ltd before it was wound up, could lodge a caveat or Lendich Heavy Equipment Ltd could be restored to the Companies Register and then lodge a caveat. The applicant…

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 [2022] NZHC 758
Case: [2022] NZHC 758
Decision Date: 12 April 2022

CaseChat Overview and Summary

Lendich v Codilla is an application for an order sustaining a caveat that Mr Lendich lodged over a property on Fred Taylor Drive, previously owned by Mr Posa, who has since died. Mr Posa's executor, Mr Codilla, opposes the application. Mr Lendich claims an interest in the property under a resulting trust, arguing that the property was transferred to Mr Posa to enable him to obtain a mortgage but it was never intended that he would have the right to sell the property. The issues for the court were whether it is reasonably arguable that Mr Lendich intended to retain a beneficial interest in the property for himself and, if so, whether the fact that the property was transferred to Mr Posa by Lendich Heavy Equipment Ltd rather than by Mr Lendich himself prevented the caveat lodged by Mr Lendich from being sustained. The court held that it was not reasonably arguable that Mr Lendich intended to retain a beneficial interest in the property for himself and that the caveat should lapse. The court did not consider it necessary to determine whether the fact that the transfer of the property to Mr Posa was by Lendich Heavy Equipment Ltd would prevent the caveat being sustained. The court held that the respondent was entitled to costs.

Orders