Maxwell (aka Rutene) v Craig - [2017] NZHC 1151

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-417 [2017] NZHC 1151

UNDER
the Property (Relationships) Act 1976,

section 42 and Land Transfer Act 1952, section 145A

IN THE MATTER OF

an application that notice of claim not lapse

BETWEEN

SHARLENE ANNE MAXWELL

(ALSO KNOWN AS SHARLENE ANNE RUTENE)

Applicant

AND

PAUL ANTHONY CRAIG Respondent

Hearing: 19 June 2017

Appearances:

S A Maxwell, applicant in person
P A Craig, respondent in person

Judgment:

19 June 2017

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Copy for:
S A Maxwell, Papakura, Auckland. P A Craig, Whangarei.

MAXWELL v CRAIG [2017] NZHC 1151 [19 June 2017]

[1] Ms Sharlene Maxwell applies under s 145A of the Land Transfer Act

1952 for an order that a notice of claim under s 42 of the Property (Relationships) Act 1976 not lapse. The notice of claim is NC5609760.1. She lodged it on
28 May 2003. The notice is lodged against the title to the property at 110 Cargill Street, Papakura. Mr Craig is the registered proprietor. In her notice of claim, Ms Maxwell said that she had been in a de facto relationship with Mr Craig for approximately 17 years. She claims an interest in the property by virtue of the de facto relationship. There has been an interim order sustaining the notice of claim pending further order of the court. I am required to decide whether the notice of claim should stay on the title.

[2] For this proceeding Ms Maxwell has not had a lawyer at any stage. Mr Craig has not been represented at this hearing but it is apparent that at an earlier stage of the proceeding he had assistance of a lawyer. His written submissions filed in opposition to the application show that a lawyer has had an input.

[3] A question arose at the start of the hearing about Mr Craig’s submissions. He had emailed them to the court and to Ms Maxwell. She complained that that was a disadvantage to her because she did not have the means to print them out. She claimed that printing would be too expensive. In answer to my question, she acknowledged that she had had the opportunity to read his submissions, and she had read the first four pages. Those were the key parts for her to read. I dealt with that by providing her with an additional copy of Mr Craig’s submissions. She was able to address me in reply after Mr Craig presented his submissions.

[4] Under s 42 of the Property (Relationships) Act 1976 a claim to an interest under that Act may be lodged against the title to land registered under the Land Transfer Act. The person lodging the claim does not have to have an actual interest in the land when they lodge the caveat. They merely need to show that they have a claim to an interest through the Property (Relationships) Act. If property is relationship property, a party to that relationship may lodge a…

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: [2017] NZHC 1151
Decision Date: 19 June 2017

CaseChat Overview and Summary

Ms Sharlene Maxwell applied for an order under s 145A of the Land Transfer Act 1952, to prevent a notice of claim from lapsing. The notice of claim was lodged against the title to the property at 110 Cargill Street, Papakura. The respondent, Mr Paul Craig, was the registered proprietor. Ms Maxwell claimed an interest in the property by virtue of a de facto relationship with Mr Craig. An interim order had been made to sustain the notice of claim, pending further orders of the court. The Associate Judge was required to determine whether the notice of claim should remain on the title. The substantive issues for determination were whether Ms Maxwell had a claim under the Property (Relationships) Act 1976 and whether the notice of claim should remain on the title. The court adopted the caveat analogy approach in deciding the case. Under this approach, the onus was on the claimant to show that she had a reasonably arguable case for the interest claimed. The court found that Ms Maxwell and Mr Craig were in a de facto relationship, but it was arguable whether it lasted after 1 February 2002. The court found that even if there was a de facto relationship after that date, Cargill Street was arguably relationship property. However, Ms Maxwell had not taken any proceedings under the Property (Relationships) Act to obtain any orders in respect of the property, and the time for making a claim had expired. The court found that the delay in taking proceedings counted against Ms Maxwell, and any application she might make against the property was doomed to fail as being time-barred. The court made an order that the notice of claim be removed from the title.

Orders