Marshall v Bourneville - [2012] NZHC 2547

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-004023 [2012] NZHC 2547

UNDER the Land Transfer Act 1952

IN THE MATTER OF an application for caveat not to lapse

BETWEEN CHRISTINE JILL MARSHALL Applicant

ANDMICHAEL VICTOR BOURNEVILLE First Respondent

ANDMARK GRAHAM BLEWDEN Second Respondent

Hearing: 1 October 2012 (Heard at Auckland)

Appearances: A Hart for Applicant
B P Carter for Respondents

Judgment: 2 October 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to caveat lapsing application]

Introduction

[1] Ms Christine Marshall and Mr Michael Bourneville were previously wife and husband. Prior to that they were in a de facto relationship, followed by a period of separation.

[2] Ms Marshall asserts that during their earlier de facto relationship she acquired an interest as a beneficiary in what the parties call “the Symonds Street property”, of

MARSHALL V BOURNEVILLE HC AK CIV-2012-404-004023 [2 October 2012]

which Mr Bourneville was initially the registered proprietor. He now shares that role with the co-trustee of the family trust.

[3] Ms Marshall, in late 2011, caveated the title to the Symonds Street property asserting that the respondents are trustees of an implied or constructive trust, having become proprietors with knowledge of Ms Marshall’s claims and interests as a beneficiary.

[4] The respondents then invoked the caveat lapsing procedure under the Land

Transfer Act 1952.

[5] Ms Marshall applies for an order that the caveat not lapse.

The principles

[6] As there was no difference between counsel on the applicable principles, I set out those principles which I adopt:

(a) The burden of establishing that the applicant has a reasonably arguable case for the interest claimed is upon the caveator (the applicant).

(b)The caveator must show an entitlement to, or beneficial interest in, the estate referred to in the caveat by virtue of an unregistered agreement, an instrument or transmission, or any trust expressed or implied: s 137 Land Transfer Act 1952.

(c) The summary procedure involved in an application of this nature is wholly unsuitable for the determination of disputed questions of fact – an order for removal of the caveat will not be made unless it is clear that the caveat cannot be maintained either because there was no valid ground for lodging it or that such valid ground as then existed no longer does.

(d)When an applicant has discharged the burden upon the applicant, there remains in a Court a discretion as to whether to remove the caveat, which will be exercised cautiously.

(e) The Court has jurisdiction to impose conditions when making orders.

Narrowing of the claim

[7] Ms Marshall gives as the specific ground of her application (that the caveat not lapse) that she has an arguable case that she has an equitable interest in the Symonds Street property by way of constructive trust.

[8] Ms Hart has confirmed that the abandonment of any reference to an implied trust was deliberate. The application is pursued upon the basis of the established principles in cases such as Gillies v Keogh1 and

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.

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Details

Case: [2012] NZHC 2547
Decision Date: 2 October 2012

CaseChat Overview and Summary

The case of Marshall v Bourneville involved an application by Christine Jill Marshall, the applicant, for an order that a caveat not lapse over the Symonds Street property. Michael Victor Bourneville and Mark Graham Blewden, the respondents, had invoked the caveat lapsing procedure under the Land Transfer Act 1952. The primary legal issue the court had to decide was whether Ms Marshall had a reasonably arguable case for the proprietary interest she claimed in relation to the Symonds Street property. The court found that the applicant's claim was legally untenable for several reasons. Firstly, the Family Court had previously determined that the transactions in question were bona fide, and an issue estoppel precluded Ms Marshall from contending otherwise. Secondly, Ms Marshall's submissions failed to provide any properly argued reasoning on many points on which the respondents needed to respond. Lastly, the authorities cited by Ms Marshall were not sufficient to overcome the propositions put in the Fisher commentary, which presented an additional hurdle for Ms Marshall's case. The court exercised its residual discretion and ordered that the caveat lapse, rescinding the interim order of 19 July 2012 that a caveat not lapse. The applicant was to pay the respondents' costs of the application on a 2B basis, together with disbursements to be fixed by the Registrar. A stay of five working days was granted on the terms of the judgment, save as to costs, on the condition that any application for an order of stay in relation to a filed appeal is filed in the Court of Appeal within five working days from the date of the judgment.

Orders