Macfarlane v Perpetual Trust Ltd - [2018] NZHC 1055

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-143

[2018] NZHC 1055

BETWEEN
JAMES JOHN DUNCAN MACFARLANE

Applicant

AND

PERPETUAL TRUST LIMITED

Respondent

CIV-2018-409-158

BETWEEN

PERPETUAL TRUST LIMITED
Applicant

AND

JAMES JOHN DUNCAN MACFARLANE

Defendant

CIV-2018-409-159

BETWEEN

PERPETUAL TRUST LIMITED
Plaintiff

AND

JAMES JOHN DUNCAN MACFARLANE

Defendant

Hearing: 30 April and 1 May 2018

Appearances:

J J D Macfarlane in person

A McDuff and J Edwards for Perpetual Trust Limited

Judgment:

15 May 2018

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

MACFARLANE v PERPETUAL TRUST LIMITED [2018] NZHC 1055 [15 May 2018]

Introduction

[1] There are three proceedings before the Court, to which I will refer as “the 143 proceeding”, “the 158 proceeding” and “the 159 proceeding”. The parties in all three proceedings are James John Duncan Macfarlane (Mr Macfarlane) and Perpetual Trust Ltd (Perpetual).

[2] The 143 proceeding was commenced by Mr Macfarlane on 14 March 2018. In this proceeding Mr Macfarlane seeks an order pursuant to s 145A of the Land Transfer Act 1952 that a caveat registered by him over the title to a property registered in Perpetual’s name at 31 Linen Road, Waiau, North Canterbury (the Property) not lapse. The 158 proceeding was commenced by Perpetual on 16 March 2018. In this proceeding, Perpetual seeks an order pursuant to s 143 of the Land Transfer Act for the removal of the same caveat. The 159 proceeding was also commenced by Perpetual on 16 March 2018. In this proceeding, Perpetual is seeking vacant possession of the Property, and applying for summary judgment pursuant to pt 12 of the High Court Rules 2016.

[3] Following a case management conference on 20 April 2018, Associate Judge Osborne ordered that all three proceedings, having arisen from the same factual circumstances, should be heard together. His Honour also directed that the litigation be accorded urgency for reasons that will become apparent. Finally, he issued comprehensive pre-hearing directions.

[4] There has been sufficient compliance with those directions to enable the matter to be dealt with in an organised way.

Background

[5] The late Mr James Lyndon Macfarlane (Mr Macfarlane Senior) died on 30 November 1962. He pre-deceased his wife, Mrs Eileen Mary Macfarlane (Mrs Macfarlane), and his children from two marriages, six from his first marriage and two (including Mr Macfarlane) from his second marriage to Mrs Macfarlane.

[6] Mr Macfarlane senior died leaving a will dated 22 October 1952 (the Will). In it he appointed Mrs Macfarlane and Mr Frank Wilding as the executors and trustees of his estate and trust (the Estate). He left a modest legacy to Mrs Macfarlane, and the balance of his estate, which was substantial and included a farm and the Property to his trustees. They were enjoined to discharge his debts and funeral expenses in the usual terms, and then hold the residue of his Estate on trust for Mrs Macfarlane and the children during the former’s widowhood. He conferred an unfettered discretion on them to pay 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 Macfarlane v Perpetual Trust Ltd

Details

AGLC: Macfarlane v Perpetual Trust Ltd [2018] NZHC 1055
Case: [2018] NZHC 1055
Decision Date: 15 May 2018

CaseChat Overview and Summary

The three proceedings before the court involved the same parties, James John Duncan Macfarlane and Perpetual Trust Ltd. In the first proceeding, Macfarlane sought an order that a caveat registered by him over the title to a property registered in Perpetual's name not lapse. In the second proceeding, Perpetual sought an order for the removal of the caveat. In the third proceeding, Perpetual sought vacant possession of the property and applied for summary judgment. The court heard all three proceedings together and ordered that the litigation be accorded urgency. The central issue before the court was whether Macfarlane had a reasonably arguable case that he had a proprietary interest in the property sufficient to support his caveat. The court found that Perpetual was lawfully appointed as the trustee of the estate and that Macfarlane had not made out an arguable case that he had a proprietary interest in the property sufficient to support his caveat. The court also found that Perpetual was entitled to summary judgment for an order for vacant possession of the property so that the sale and purchase transaction could be settled. The court reserved costs, with the expectation that the parties would discuss and agree on them.

Orders