Matthews v Memelink - [2012] NZHC 2284

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-008520

CIV 2011-404-001400 [2012] NZHC 2284

BETWEEN CECILE ANN MATTHEWS Plaintiff

ANDHARRY MEMELINK AND C M S TRUSTEE LTD, AS TRUSTEES OF THE LINK TRUST NO. 1
Defendant

Hearing: 14-16, 30 May 2012 (final submissions received 13 July 2012) Appearances: D Rooke for Plaintiff
C J Tennet for Defendants

Judgment: 5 September 2012

(RESERVED) JUDGMENT OF ANDREWS J

This judgment is delivered by me on 5 September 2012 at 2:30pm pursuant to r 11.5 of the High Court Rules.

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

Solicitors:
David Rooke Law Office, DX EP84015, Botany Town Centre
Peter C Gilbert, DX SP23516, Wellington
Counsel:
C J Tennet, PO Box 12456, Thorndon, Wellington 6144

MATTHEWS V MEMELINK AND C M S TRUSTEE LTD, AS TRUSTEES OF THE LINK TRUST NO. 1 HC AK CIV 2010-404-008520 [5 September 2012]

Introduction

[1] These proceedings concern the ownership and occupation of a property at Pakuranga, Auckland (“the property”). As at 20 September 2006 the property was owned by Ms Matthews (applicant in the proceeding CIV-2010-404-8520 and plaintiff in the proceeding CIV-2011-404-1400) (“the plaintiff”) and her husband, John Hoyte, in equal shares. On 21 September 2006 the property was transferred to the defendants. At all material times the property was occupied by the plaintiff and Mr Hoyte.

[2] The plaintiff alleges that, at the time the property was transferred to the defendants, an agreement was entered into with the defendants, the terms of which included that the plaintiff and Mr Hoyte would have the right to live in the property for their lifetime, at no cost to them, and that Mr Hoyte would receive a salary of
$5,000 a month, also for his lifetime.

[3] The plaintiff and Mr Hoyte have lodged a caveat against the title to the property to protect their alleged interest. In the proceeding CIV-2010-404-8520 (“the caveat proceeding”), the plaintiff seeks to sustain the caveat. In the proceeding CIV-2011-404-1400 (“the substantive proceeding”), the plaintiff seeks a variety of remedies to give effect to the agreement allegedly entered into in September 2006.

[4] The defendants deny that any such agreement as alleged by the plaintiff exists. They counterclaim for an order that the plaintiff vacate the property, and for an order that she pay the defendants a fair market rental for the property, as from 21
September 2006, with interest.

[5] The two proceedings were heard together.

Background

[6] The following is an outline of the relevant background. The facts relating to matters at issue in the proceeding are set out in more detail when those issues are considered.

Mr Memelink and Mr Hoyte in business together

[7] In 1998, Mr Hoyte and the first-named defendant, Mr Memelink, each acquired minor shareholdings in two associated companies, Enterprise Tools Limited and Engineering Supplies Limited. These companies will be referred to as “ETL”. In early 1999 Mr Hoyte and Mr Memelink (or nominee) entered into an agreement to buy ETL’s business. Prior to settlement of that agreement,…

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 Matthews v Memelink

Details

AGLC: Matthews v Memelink [2012] NZHC 2284
Case: [2012] NZHC 2284
Decision Date: 5 September 2012

CaseChat Overview and Summary

The proceedings involved a dispute over the ownership and occupation of a property at Pakuranga, Auckland. The property was originally owned by Ms Cecile Matthews and her husband, John Hoyte, in equal shares. In September 2006, the property was transferred to the defendants, Harry Memelink and CMS Trustee Ltd, as trustees of the Link Trust No. 1. Ms Matthews and Mr Hoyte have continued to occupy the property. The plaintiff claimed that an agreement was entered into with the defendants in September 2006, which included the right to occupy the property for their lifetimes at no cost and a salary for Mr Hoyte. The defendants denied the existence of such an agreement and counterclaimed for an order that the plaintiff vacate the property and for fair market rental, with interest, from September 2006.

The court found that the plaintiff could not sue on behalf of Mr Hoyte, as he had no interest in the property due to his bankruptcy. The court also concluded that Mr Hoyte had signed the November 2003 agreement, which was used by the defendants to enforce their claims. However, this did not affect the plaintiff's separate interest in the property. The court found that the defendants had only partially settled the agreement for sale and purchase, and the plaintiff was entitled to be paid $155,715.33 for her half share. The court did not find any concluded agreement regarding the property as alleged by the plaintiff. Consequently, the plaintiff's claim in the caveat proceeding failed, and the caveat must lapse. The defendants succeeded in their counterclaim for rental, and the plaintiff was ordered to pay a fair market rental of $480 a week plus GST since September 2006. The plaintiff and Mr Hoyte were given until 30 November 2012 to vacate the property and provide vacant possession to the defendants. They remained jointly liable to pay rent at $480 a week plus GST for as long as they continued to occupy the property. The court considered that no order for costs should be made, and that costs should lie where they fell.

Orders