Mamat v Mamat

[2018] NZHC 639

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-709 [2018] NZHC 639

BETWEEN

KAMARUDIN MAMAT

Applicant

AND

ABU BIN MAMAT

Respondent

Hearing:

7 March 2018

Appearances:

M Moran for Applicant

B H Frampton and C Mo for Respondent

Judgment:

11 April 2018

JUDGMENT OF NICHOLAS DAVIDSON J

A.INTRODUCTION

[1]        This  case  concerns  two  brothers  who  grew  up  in  Singapore.   Kamarudin Mamat (“Din”) moved to Christchurch in the 1990s and remains there, Abu Bin Mamat (“Abu”) remained in Singapore.

[2]        In 1996, Din and Abu signed an agreement for the sale and purchase of a residential property at 6 Wadhurst Place, Christchurch (“the property”), registered in their joint names. In 2017, Abu registered a transfer of his joint interest to himself, severing the joint tenancy, so they are now tenants in common in equal shares.

MAMAT v MAMAT [2018] NZHC 639 [11 April 2018]

[3]        Until the hearing in this Court on 7 March 2018, Abu maintained that he was entitled to be registered as a three-quarter share owner and lodged a caveat to that effect. The caveat was later withdrawn and he now says he is entitled to a legal and equitable one-half interest in the property.

[4]        Din has lived in the property since 1996 and has made his life in Christchurch. He seeks a declaration that he should have the entire equitable interest and Abu should have none. He says that he did not understand the significance of Abu being named as purchaser in the agreement for sale and purchase, or registered on the title. He pleads:

At all material times, the applicant (Din) believed that his brother had no beneficial interest in the property as an owner and was simply participating in the purchase because of his experience in such matters and to assist the applicant. (Din)

[5]        The proceedings are brought as an originating application under the Declaratory Judgments Act 1908. Given the disputed questions of fact, the proceeding would have been better mounted as an orthodox civil proceeding. For the sake of the parties, who need resolution, the Court proceeds on the case as pleaded, as the evidence that has been given, while light on detail, is sufficient to dispose of the case. The dispute has extended to engage other members of this family living in Singapore, at least two of whom travelled to New Zealand for this hearing, including their mother, Hajah Sapiah Bte Abdullah (“Hajah Sapiah”).

The competing positions

[6]        The competing positions are therefore that of Abu who says he has a one-half legal and equitable interest in the property, and Din who says he has the entire equitable interest. Din says his interest is derived either pursuant to an institutional constructive trust, or a resulting trust.

B.        EVIDENTIAL AND LEGAL ISSUES

[7]        There is a fundamental dispute as to how and why the property was purchased, and for whom. The dispute extends to the…