Meredith v Soroka

[2019] NZHC 2723

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001032

[2019] NZHC 2723

UNDER

Section 143, Land Transfer Act 2017 and s 42, Property (Relationships) Act 1976

IN THE MATTER OF

an application to sustain notices of claim 11358344.1 and 11359346.1

BETWEEN

LOUISE CLARE MEREDITH

Applicant

AND

GLENN MICHAEL SOROKA

First Respondent

PROFESSIONAL TRUSTEE SERVICES (FLYING CROSS) LIMITED

Second Respondent

Hearing:

16 September 2019

Appearances:

A J Bell and A L Norcross for Applicant D W Grove for First Respondent

No appearance for Second Respondent

Judgment:

24 October 2019

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on 24 October 2019 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:

McVeagh Fleming, Auckland Turner Hopkins, Auckland

MEREDITH v SOROKA [2019] NZHC 2723 [24 October 2019]

Introduction

[1]                 The parties were in a de facto relationship for approximately 10 years from 2008 until they separated in September 2018. The applicant, Louise Meredith, continues to live in the former family home in South Auckland, together with the one son of the relationship, now aged six years.

[2]                 No proceedings have yet been filed in the Family Court under the Property (Relationships) Act 1976 (PRA). However, Ms Meredith anticipates that proceedings will be filed shortly; they are currently being drafted.

[3]                 In the present proceedings, Ms Meredith seeks orders under s 143(4) of the Land Transfer Act 2017 (LTA) that notices of claim that she has lodged against three separate properties pursuant to s 42 of the PRA not lapse. The three properties are:

(a)A bare bush block of land located at Klondyke Road, Onewhero/Port Waikato, registered in the name of the first respondent, Glenn Soroka, (the Port property);

(b)Bare land at Lake Terrace, Taupo, registered in the name of Mr Soroka and, at the time of the hearing, the subject of an unconditional agreement  for  sale  and  purchase  with  settlement  to  occur  on     24 September 2019 (the Lake Terrace property);1 and

(c)The property at 58 Old Barn Road, Papakura, registered in the name of the second respondent, the Professional Trustee Services (Flying Cross) Ltd (the family home).

[4]                 Mr Soroka contends that all three properties are owned by trusts and that    Ms Meredith has no beneficial interest or arguable qualifying relationship property

1      In a memorandum on behalf of the first respondent dated 2 October 2019, the Court was advised that the Lake Terrace property was settled on 24 September 2019 on the basis of an interim arrangement whereby various payments were made of the balance held pending agreement between the parties or court order. Accordingly, the parties now seek a decision as to whether the Notice of Claim was validly lodged in respect of the Lake Terrace property.

interest in any of the properties. He further contends that the Port and Lake Terrace properties were purchased by trusts associated with him many years before the relationship with Ms Meredith commenced.

[5]                 The parties agree that, as a general rule, a notice of claim cannot be lodged against land held in trust unless the land is vulnerable to a claim under the PRA. The critical issues for my determination are:

(a)whether Ms Meredith has arguably legitimate claims under the PRA; and

(b)whether, as a matter of discretion, and with a view to preventing     Mr Soroka from defeating any legitimate property relationship claims Ms Meredith might have, the Notices of Claim should be sustained.

Background facts

[6]                 Many of the factual allegations made by both parties are contested, and the documentation annexed to the various affidavits are incomplete or presented in a way that makes it difficult to understand and determine the true nature of the property transactions at issue.

[7]                 I acknowledge that, at the time he prepared and filed his evidence, Mr Soroka was not legally represented.

[8]                 I set out below a brief timeline containing some important dates. I acknowledge that a number of these matters may be contested.

[9]                 In September 2001, the Port property was purchased by Mr Soroka in his own name. He says the property was subsequently transferred to the Pakau Charitable Trust on a later date.

[10]              The Pakau Charitable Trust was established on 1 May 2003 with Mr Soroka as the settlor, trustee and appointor. His brother and his brother’s children were beneficiaries.

[11]              In May 2003, the Mountain Lake Trust was established with Mr Soroka as settlor, trustee and appointor. Again, his brother and his brother’s children were listed as the beneficiaries.

[12]              In August 2005, Mr Soroka says he purchased a half-share of the Lake Terrace property as trustee of the Mountain Lake Trust.

[13]In May/June 2008, the parties’ relationship commenced.

[14]In 2008, the Pakau Charitable Trust changed its name to the Pakau Trust.

[15]              In October 2010, Mr Soroka says he purchased the remaining half-share of the Lake Terrace property, as trustee of the Mountain Lake Trust, from Bernadette Sumicz and Nicola Sumicz.

[16]              In July 2013, Ms Meredith says she was added as a trustee of the Mountain Lake Trust.

[17]              In July 2013, Ms Meredith, Mr Soroka and their children were added as beneficiaries of the Mountain Lake Trust. This is disputed by Mr Soroka.

[18]              On 21 September 2015, the Pakau One Trust was established, with Mr Soroka as the settlor, trustee and appointor. He and the child, Mishka, were listed as beneficiaries. Ms Meredith says she recalls a trust deed as having been signed in early- mid 2016.

[19]              On 21 June 2016, the family  home  was  purchased  in  the  sole  name  of Mr Soroka.

[20]              On 7 November 2016, the Flying Cross Trust was established. Mr Soroka and Ms Meredith are both as discretionary beneficiaries of that trust and their son, Mishka, was listed as a final beneficiary. Mr Soroka contends that Ms Meredith is no longer a beneficiary of the Flying Cross Trust.

[21]              In February 2018, the family home was transferred to the second respondent, the Professional Trustee Services (Flying Cross) Limited.

[22]              Ms Meredith says that, on 1 May 2018, she was added as a beneficiary to the Pakau One Trust.

[23]              On 1 May 2018, Ms Meredith says that Mr Soroka purported to transfer the Port property from the Pakau Trust to the Pakau One Trust. Ms Meredith says she recalls that the document purporting to give effect to the transfer was signed on 1 May 2018. Mr Soroka contends that it was signed on 21 September 2015.

[24]Ms Meredith lodged the Notices of Claim at issue on 14 February 2019.

[25]              On 4 April 2019, Mr Soroka triggered the lapsing procedure under s 143 of the LTA 2017 by lodging applications with the Registrar General of Land. Mr Soroka’s application was lodged in respect of the family home despite him not being the registered proprietor of the family home or a trustee of the Flying Cross Trust.

Relevant legal principles

[26]              By s 42(3) of the PRA, every notice of claim so lodged has effect as if it were a caveat against dealings lodged pursuant to s 138 of the Land Transfer Act 2017.

[27]              There is no dispute that the following principles referred to in Brookers Family Law apply:2

(a)A notice of claim must protect an interest arising under the PRA and cannot be used to protect some other allegedly property interest, such as one arising pursuant to a constructive trust.3

(b)It follows that there must be an arguable qualifying relationship under the PRA able to give rise to a relationship property claim.

2      Nicola Peart (ed) Brookers Family Law — Family Property (online looseleaf ed, Thomson Reuters) at [PR42.03].

3      At [PR42.03(2)], citing Buxton v Buxton [2017] NZHC 131.

(c)The type of relationship property “interest” claimed must not be defined narrowly or strictly.4

(d)A substantive relationship property claim need not be filed, pending or even contemplated before a notice of claim is lodged.5

(e)The applicant must show that the applicant’s partner has a beneficial interest, or some entitlement to the land, or must have disposed of it in circumstances where a claim under ss 44 (dispositions may be set aside) or 44C (compensation for property disposed of to a trust) of the PRA could be made.6

(f)The general rule is that a notice of claim cannot be lodged against land held in trust, unless the land is vulnerable to a claim under the PRA.7

(g)However, it is well established that the Court can sustain notices against trust assets if there is a potential claim under the PRA, for example because the respondent partner has a vested or contingent interest in the land held in trust, or the trust is alleged to be a sham or non-existent (illusory) trust, or there has  been a disposition of the  trust caught  by s 44 or s 44C of the PRA. A notice of claim could also support a claim that trustees are holding subject property under a constructive trust for the benefit of either of the parties to the relationship.8

[28]              The onus is on the caveator to show that he or she has a reasonably arguable case for an interest claimed.9 However, even if the caveator establishes a reasonably arguable case to sustain the relevant interest, the Court may nevertheless make an order for removal where it is satisfied that the caveator can have no reasonable

4      At [PR42.03(2)], citing Arrow Farms Ltd v Jackson (1991) 7 FRNZ 561 (HC).

5      At [PR42.03(2)].

6      At [PR42.03(3)].

7      At [PR42.03(3)(b)].

8      At [PR42.03(3)(b)].

9      SM v ASB Bank Ltd [2012] NZCA 103 at [35].

expectation of obtaining a benefit from the continuance of the caveat or the caveator’s interest can be reasonably accommodated in some other way.10

Analysis and decision

[29]              The threshold that Ms Meredith, as the applicant, must establish is a reasonably arguable case for the interests claimed. That matter is of particular importance in this case, where there is a regrettable degree of ambiguity as to whether the Port and Lake Terrace properties were owned by trusts or are the personal property of Mr Soroka.

[30]              Ms Meredith may have over-stated some of her concerns about the documentation provided by Mr Soroka and his “chaotic and disorderly” financial affairs. Ultimately, Mr Soroka may be able to provide an explanation and supporting documentation which addresses some of the concerns raised.

[31]              However, on the evidence before me, I find that there is prima facie merit to many of the allegations Ms Meredith makes about the unsatisfactory nature of the documentation provided by Mr Soroka and the lack of clarity about the critical issue of the status of the properties at issue.

[32]              The onus remains on Ms Meredith to establish a reasonably arguable case, but the multiple irregularities identified form part of the context in which I must address the issue of whether and how to exercise my discretion to ensure that Ms Meredith’s legitimate interests to relationship property and entitlements under the PRA are not defeated.

[33]              Against the backdrop of the multiple irregularities with the trust documentation (or lack of it) and the alleged conduct of Mr Soroka acting in breach of his trustee obligations (all of which is said to support the contention that the properties are owned by him in his personal capacity), Ms Meredith contends that both the Pakau One Trust and the Mountain Lake Trust were shams. She relies on the Supreme Court decision of Clayton v Clayton.11

10     Bennett v Blackley [2015] NZHC 1322 at [33], citing SM v ASB Bank Ltd, above n 9.

11     Clayton v Clayton [2016] NZSC 29, [2016] 1 NZLR 551.

[34]              However, as Mr Grove submitted on behalf of Mr Soroka, the threshold for a sham trust is a high one; strong and cogent evidence is required before, what this Court has described as, “such an ‘extreme’ conclusion” might be warranted.12

[35]              The best that the applicant may be able to establish is reprehensible conduct by Mr Soroka, which would not, as the Supreme Court in Clayton indicated, render the trusts invalid.

[36]              The jurisprudence is not entirely settled, but the Court of Appeal in Vervoort v Forrest, a decision subsequent to Clayton, held that:13

[28]  … At the present stage New Zealand law does not recognise that the  de facto control of a trust by a single trustee, who is also a beneficiary, creates a sham even if the other trustees are clearly not involved.

…

[37] … There is no room for an illusory trust, unless the phrase was treated as meaning no trust at all. There is either a trust or there is not, and there can be no half-way house, where there is a trust but it is not to be regarded as like other trusts because of the extent of the control of a single trustee. …

(footnotes omitted)

[37]              In the circumstances, it is difficult to see how Ms Meredith could meet the threshold (even to an arguable case standard) for a sham trust. In the case of both trusts at issue, there does seem to have been a genuine intention to create a trust and some documentation was provided to support their existence. However, I do not need to make any express finding on this point. As I discuss below, there is a distinction to be made between whether a trust is valid (that is, not a sham) and whether the trust actually owns the properties at issue. Thus, while the trusts may be genuine and were initially properly established, if there is an arguable case that the trustees of the trust do not own the properties and that the properties are in fact the personal property of Mr Soroka, then the basis for Ms Meredith’s Notices of Claims can be considered on other grounds, including s 9A of the PRA.

12 Vervoort v Spears [2015] NZHC 808 at [61].

13 Vervoort v Forrest [2016] NZCA 375, [2016] 3 NZLR 807. In Penn v McQueen [2019] NZHC 2192, Katz J briefly refers to the concept of an “emerging sham” with reference to the Supreme Court decision of Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2008] NZSC 115, [2009] 2 NZLR 289, a case also relied upon by the applicant, Ms Meredith.

The Port property

[38]              There is no dispute that the Port property was registered in the sole name of Mr Soroka in 2001, well before the parties’ relationship commenced in 2008. That is confirmed by the Certificate of Title in evidence before me. That same certificate records that the property is still today registered in the sole name of Mr Soroka.

[39]              However, the evidence as to whether the Port property was subsequently transferred to the Pakau Charitable Trust, then to the Pakau Trust and subsequently to the Pakau One Trust, is unreliable and far from clear.

[40]              Despite the unsatisfactory nature of some of the documentary evidence, particularly that of Mr Soroka (which tends to confirm Ms Meredith’s allegations of chaotic and disorderly financial affairs), I find that Ms Meredith has established a reasonably arguable property relationship interest in Mr Soroka’s beneficial interest in the Port property. The evidence establishes, to the requisite standard, either:

(a)that the Port property is the separate personal property of Mr Soroka and that Ms Meredith has an arguable relationship property claim to it under s 9A of the PRA (a claim to an increase in value); or

(b)if the Port property is held on trust by the Pakau One Trust, then she has an arguable claim to Mr Soroka’s beneficial interest as the primary beneficiary of that trust. Again, the reasonably arguable relationship property interest arises under s 9A of the PRA.14

[41]              Ms Meredith has established a number of significant irregularities with the claims and (incomplete) supporting documentation provided by Mr Soroka in support of his contentions that the Port property has been validly transferred to the various trusts. This evidence supports the claim that the Port property is the personal property of Mr Soroka. These irregularities include:

14     Mr Soroka claims to be a beneficiary of the Pakau One Trust and the documentation provided refers to him as the “primary beneficiary”.

(a)The establishment of the Pakau Charitable Trust when it had no charitable purpose. Ms Meredith, who was a practicing solicitor during the parties’ relationship gave advice to Mr Soroka about that matter.

(b)At the time of the alleged transfer of the Port property from the Pakau Trust to the Pakau One Trust (which Mr Soroka says is proven by a resolution  attached  to  his  affidavit  dated  21  September  2015),   no consent was obtained from the ANZ Bank, who had a mortgage security registered against the property. Furthermore, as noted above, the alleged change in ownership has not been properly documented.   It is also the case that, in 2015, at the time the alleged transfer from the Pakau Trust to the Pakau One Trust occurred, Ms Meredith had a Notice of Claim lodged over the property. She did not consent to the transfer.

(c)The alleged transfer of the Port property from the Pakau Trust to the Pakau One Trust was arguably a resettlement of the Port property and would have needed to be in a deed to comply with cl 8 of the Trust Deed. However, there is no evidence of any such deed.

(d)There are two Trust Deeds for the Pakau One Trust, both with the type- written date of 21 December 2015 but with different witnesses.

[42]              Section 9A of the PRA provides that if any increase in the value of separate property is directly or indirectly attributable to the actions of the other spouse, then the increase in value is relationship property. The share of each spouse or partner in that property is then to be determined in accordance with the respective contribution.15

[43]              I find that Ms Meredith has established, to the reasonably arguable standard, that she has made the following contributions to the Port property and, on that basis, may be entitled to orders under s 9A of the PRA (or alternatively, s 17):

15     Property (Relationships) Act 1976, s 9A(2)(b).

(a)Ms Meredith assisted Mr Soroka with negotiations with the National Bank that resulted in him being approved a reduced interest rate on lending secured against both the Port and Lake Terrace properties.

(b)Ms Meredith signed an unlimited guarantee for Mr Soroka’s loan secured over the Port property at a time when Mr Soroka was unable to finance the loan himself and was being threatened with a mortgagee sale.

(c)Ms Meredith’s role in the ongoing negotiations with the bank resulted in the bank confirming that it would extend the term of Mr Soroka’s loan and moving the loan from a floating to a fixed rate.

(d)Ms Meredith then made repayments on that loan for a period of time from income earned by her. She was the sole breadwinner at that time.

(e)Ms Meredith paid rates on the Port property for some time. Allegations by Mr Soroka that the payments were repaid at a later date is contested and I cannot determine that matter at this stage.

(f)Ms Meredith contributed to the creation of 29 transferable development right (TDRs) on the Port property and a further subdivision and court case against the Auckland Council, the proceeds of which went on to repay the debt secured over the Port property, pay for its rates for the remainder of the relationship and to then purchase the family home. Her work arguably involved substantial preparation of legal documents and arguably resulted in real value.

(g)Ms Meredith played an important role in the negotiations, which resulted in the owner of the Pakau Trust being granted a right of way over the neighbouring land to house sites on the Port property. Although the right of way has not yet been completed, it has, arguably, significantly increased the value of the property.

[44]              There may ultimately, as Mr Grove submitted, be a reasonable basis for challenging the extent of the contributions claimed and whether they actually contributed to any increase in value. However, that is not a matter I can determine; the alleged contributions and the contention that they contributed in a material way to an increase in value are tenable arguments at this stage.

[45]              I reject Mr Grove’s submission that Ms Meredith has failed to provide a sufficient evidential foundation as to the quantum or value of any contribution she says she has made. She is not required at this stage to specify with any degree of precision the quantum of any contribution; that is a matter that will need to be tested and determined at any subsequent trial.

[46]              There may also be merit to Mr Grove’s submission that, in reliance on the decision of this Court in Hyde v Hyde, the repayment of a mortgage debt does not contribute to an increase in the value of a separate property itself (as opposed to the equity in that property).16 However, again, that is not a matter I can determine at this summary stage; the contribution to the repayment, which is said to have prevented the mortgagee sale of the property, has arguably led to an increase in value. In any event, it is only one of the alleged contributions at issue.

[47]              I further reject the submission of Mr Grove that Ms Meredith cannot demonstrate any substance to her claim of contribution in the absence of documentation confirming fee invoices rendered for the legal services she is said to have provided. It is unsurprising that, as the partner of Mr Soroka, she did not issue invoices, and, on the evidence before me, it is clearly arguable that the contributions she made were real ones and did lead to a material increase in value of the property.

The family home

[48]              At the hearing, Mr Grove offered little opposition to Ms Meredith’s application that the caveat not lapse with respect to the family home. That was a proper and responsible position to adopt.

16     Hyde v Hyde [2011] NZFLR 35 (HC).

[49]              Mr Soroka is not the registered proprietor of the family home; the second respondent is. Likewise, Mr Soroka is not a trustee of the Flying Cross Trust or a director of the second respondent, the corporate trustee, Professional Trustee Services Ltd.

[50]              In a memorandum filed with the Court dated 21 June 2019, counsel for the second respondent advised that the second respondent had no knowledge, at the time, of the Notices of Application lodged by Mr Soroka. On 28 March 2019, the second respondent gave notice to retire and be discharged as a trustee of the Flying Cross Trust. However, that issue has not yet been resolved and, to my understanding (having not been informed to the contrary), the second respondent remains a trustee of the Flying Cross Trust.

[51]              I find that  Mr  Soroka  had  no  authority  to  make  application  pursuant  to s 143(1)(b) of the LTA 2017 to lapse the Notice of Claim in respect of the family home. There was accordingly no valid application which could have triggered the procedures in s 143(3) of the LTA 2017. The application referred to in subs (3) is confined to those persons expressly entitled to make such application as set out in subs (1).

[52]              In the circumstances, I find that there is no basis to lapse the Notice of Claim 11359346.1 because s 143 has not been engaged. The Notice of Claim remains in place just as it would if no application under s 143 had been brought.

[53]              In any event, the property at issue is the family home and, arguably, would be relationship property by virtue of s 8(1) of the PRA. It was initially purchased in the name of Mr Soroka during the parties’ relationship. Furthermore, the property was then transferred to the Flying Cross Trust in February 2018, during the course of the parties’ relationship. And Ms Meredith clearly has arguable claims under ss 44 and 44C of the PRA. Mr Soroka’s opposition to Ms Meredith’s application to sustain the Notice of Claim over the family home is without merit.

The Lake Terrace property

[54]              I find that Ms Meredith has established a reasonably arguable claim to a relationship property interest in the Lake Terrace property or, at least, to an interest in 50 per cent of that property that was acquired by Mr Soroka in 2010.

[55]              The question of whether, as contended by Mr Soroka, the Lake Terrace property is owned by the Mountain Lake Trust or Mr Soroka in his personal capacity is not clear and will need to be determined in any Family Court proceedings.17 However, there is a reasonable arguable case that the Lake Terrace property is the personal property of Mr Soroka and that Ms Meredith has an arguable claim to it pursuant to s 8(1)(e) of the PRA, namely that it was properly acquired by Mr Soroka after their relationship began and is prima facie relationship property.

[56]              The Certificate of Title for the Lake Terrace property records Glen Michael Soroka as the registered proprietor. It also records the transfer of a half-share in that property from Bernadette Mary Sumicz and Nicola Mary Sumicz to Mr Soroka in 2010. There is no record of the applicant, Ms Meredith, becoming a trustee owner, despite Mr Soroka’s contention that Ms Meredith was added as a trustee of the Mountain Lake Trust on 4 July 2013.

[57]              As with the Pakau One Trust, there are numerous irregularities (albeit as yet untested) apparent from the evidence in relation to the Mountain Lake Trust, which casts real doubt on whether that trust has ever been the owner of the Lake Terrace property. There may be a valid trust in existence, namely the Mountain Lake Trust, but that is of course a separate question from whether the trustees of the trust have ever owned the Lake Terrace property or 100 per cent of it, as Mr Soroka claims.

[58]              There is no independent evidence before the Court verifying the ownership of the Lake Terrace property whether evidence from Land Information New Zealand, IRD gifting statements, IRD land transfer statements, the conveyancing file and the like.18  Furthermore, Ms Meredith has, in her affidavit in reply, provided an evidential

17     See Yeoman v Public Trust Ltd [2011] NZFLR 753 (HC), where Associate Judge Bell refers to the “inventory-taking function” of the Family Court to determine the status of any particular property.

18     As noted above, the Certificate of Title simply records Mr Soroka as the sole registered proprietor.

foundation for the contention that Mr Soroka may have attempted to retrospectively create minutes and resolutions of the Mountain Lake Trust trustees with a view to trying to document and establish transactions that are in dispute. Ms Meredith has also documented the numerous steps that Mr Soroka has taken (such as obtaining personal loans secured against the Lake Terrace property to fund his living expenses) that suggest he has treated the property as his own personal property and in no way has been constrained by trustee responsibilities. There are clearly some serious issues that need to be investigated in order to accurately determine the status of the Lake Terrace property.

[59]              While many of the facts are in dispute and will need to be tested at trial in the Family Court, I find that Ms Meredith has established a reasonably arguable case that she made material contributions (qualifying relationship property contributions) to the Lake Terrace property. This included:

(a)direct financial contributions ($20,000 to the purchase of the 50 per cent share in 2010);

(b)the payment of solicitor’s fees; and

(c)the payment of rates.

[60]              I reject the contention of Mr Grove at this summary stage that the contributions were de minimis. I also reject the submission that the sale price of $380,000 (for the sale on 24 September 2019) demonstrates that, in reality, Ms Meredith’s contributions have not led to any increase in the value of the property. It will be for the Family Court to weigh up all the evidence to determine what and how Ms Meredith’s contributions are to be recognised. The arguable case that Ms Meredith has established is not simply confined to an arguable s 9A claim, but at least, in relation to the 50 per cent share acquired in 2010, she also has an arguable claim based on s 8(1)(e) of the PRA — the property is relationship property, and she personally paid for some of the purchase price.

Exercise of discretion

[61]              The thrust of Mr Grove’s submissions was directed at establishing that there is a lack of substance to Ms Meredith’s claims (thin and tenuous), and thus, in terms of the Court’s discretion, there are no legitimate relationship property interests to protect.

[62]              However, for reasons given above, I reject that submission. There is an arguable case for qualifying relationship property interests in all three properties at issue and in the circumstances the only way to protect such interests is to uphold the Notices of Claim. There is no evidence before me as to how Ms Meredith’s interests might be reasonably accommodated in some other way or that she can have no reasonable expectation of obtaining any benefit from the continuance of the Notices of Claim. In my view, they need to remain in place pending determination of all outstanding issues in the Family Court.

[63]              As indicated above, I accept that no proceedings have yet been filed in the Family Court. However, that is not a matter that Ms Meredith must establish in order to sustain the notices. In any event, counsel has indicated that the proceedings will be filed shortly and the substantial work that has obviously gone into preparing these proceedings will clearly be of benefit to the proceedings to be filed in the Family Court.

[64]              For all these reasons, I find that I should uphold the Notices of Claim in respect of all three properties.

Result

[65]              The application by the applicant, Louise Clare Meredith, dated 4 June 2019, is granted on the following terms:

(a)Notice of Claim 11358344.1 registered against Title No. SA72B/974 (South Auckland) not lapse pursuant to s 143 of the Land Transfer Act 2017; and

(b)I declare that the Notice of Claim 11359346.1 registered against record of Title No. 258352 is to remain as a valid notice of claim and treated as if no application had been made pursuant to s 143(1) of the Land Transfer Act 2017 (as Glenn Michael Soroka purported to do in his application dated 4 April 2019).

[66]              I make no formal order in relation to the Lake Terrace property (SA72A/1082). However, I have concluded that the Notice of Claim was validly lodged in relation to that property.

[67]              As to costs, I am of the preliminary view that having succeeded, the applicant, Ms Meredith, is entitled to costs and on a 2B basis as calculated (plus disbursements) in the applicant’s updated memorandum dated 24 September 2019 at [84] (that is, a total of $13,244). If the parties cannot agree on costs, then memoranda are to be filed and served within 14 days.

Associate Judge P J Andrew