Mallon v Griffiths - [2023] NZHC 1371

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2023-463-3

[2023] NZHC 1371

BETWEEN
ANTHONY PAUL MALLON

and
CAROLYN ANN MALLON
Plaintiffs

AND

LEWIS HUGH GRIFFITHS

Defendant

Hearing: 10 May 2023

Appearances:

Judgment:

12 June 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application to sustain a caveat]

This judgment was delivered by me on 12 June 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Phillips & Co Law (Minka Bodd -Phillips), Rotorua, for the Plaintiffs
Morshead Law Limited t/a Law Box (Roslyn Morshead), Rotorua, for the Defendant

MALLON v GRIFFITHS [2023] NZHC 1371 [12 June 2023]

TABLE OF CONTENTS

Paragraph

Introduction [1]

Background [2]

Mallons’ application for caveat to not lapse [11]

Mr Griffiths’ opposition [13]

Affidavits [14]

Affidavit of Carolyn Ann Mallon dated 16 December 2022 [14]

Affidavit of Lewis Hugh Griffiths dated 1 February 2023 [24]

Further and reply affidavit of Carolyn Ann Mallon and
Anthony Paul Mallon dated 14 February 2023 [35]

Affidavit of Bruce Ward dated 15 February 2023 [47]

Reply affidavit of Lewis Hugh Griffiths dated 24 February 2023 [49]

Legal principles [50]

Hearing [56]

Analysis [59]

Do the Mallons have a caveatable interest in the property? [61]

Conclusion in respect of caveatable interest  [77]
Should the Court exercise its residual discretion to remove the caveat
or allow it to lapse?  [79]
Conclusion in respect of the exercise of the Court’s discretion to lapse
or remove the caveat  [80]

Result [81]

Costs [82]

Orders [83]

––––––––––––––

Introduction

[1] Anthony and Carolyn Mallon (together, the Mallons) have applied for an order sustaining caveat number 12565933.1 (the caveat) lodged by them against a property registered in the name of their stepson/son, Lewis Griffiths (Mr Griffiths), on Tawhero Street, Mamaku, Rotorua (the property).

Background

[2] Mr Griffiths agreed to buy the property from Mr and Mrs Ward in 2016. In March 2017, Mr Griffiths was $10,000 short of being eligible for the requisite home loan and requested it from the Mallons. In May 2017, the Mallons made a further
$10,000 payment to Mr Griffiths upon request.

[3] The sale settled in July 2017 and Mr Griffiths’ girlfriend, Ms Josephine Mead (Ms Mead), also moved into the property. The property was to be extended for the Mallons to live in, and they eventually relocated to the property in around June 2019. In the meantime, they paid Mr Griffiths $50 weekly, totalling $5,650, either to go towards the property’s mortgage, as the Mallons contend, or towards renting a sleepout on the property, as Mr Griffiths contends.

[4] The Mallons had some involvement in the extension, with them Mr Griffiths and Ms Mead engaging Graeme Leigh, a mortgage broker, to discuss financing it. The Mallons contend they paid Mr Griffiths the following money towards the extension:
$8,637.88 for the draft architectural plans, $1,814 as their half share of the building consent, and $426.94 as their half…

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 Mallon v Griffiths

Details

AGLC: Mallon v Griffiths [2023] NZHC 1371
Case: [2023] NZHC 1371
Decision Date: 12 June 2023

CaseChat Overview and Summary

In the High Court of New Zealand Rotorua Registry, the Mallons applied for their caveat over a property in Mamaku, Rotorua, to not lapse. The property is registered in the name of Mr Griffiths, the Mallons' stepson/son. The Mallons claim a beneficial interest in the property, including a constructive trust and an equitable mortgage, based on their financial contributions and involvement in the property's extension. Mr Griffiths opposes the application, asserting that any payments made by the Mallons were either gifts or loans, and that there was no intention for the Mallons to acquire a beneficial interest in the property. The court considered the affidavits and oral evidence from both parties, as well as the relevant legal principles. The court found that the Mallons have established an arguable case that they have a beneficial interest in the property by way of a constructive trust and therefore a caveatable interest. The court also determined that, given the ongoing Family Court proceedings relating to Ms Mead's claim on the property, removing the caveat would be prejudicial to the Mallons. As a result, the court granted the Mallons' application to sustain the caveat and awarded them costs on a 2B basis.

Orders