Mrs X v Company B - [2014] NZHC 2197

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF THE PARTIES AND OF THE ENTITITES ANONYMISED IN THE JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000354 [2014] NZHC 2197

UNDER the Land Transfer Act 1952

AND

UNDER

the Property (Relationships) Act 1976

BETWEEN

MRS X Plaintiff

AND

COMPANY B Defendant

Hearing: 10 September 2014

Appearances:

A M Corry for Applicant/Plaintiff
J E Bayley for Respondent/Defendant

Judgment:

10 September 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to application for stay of execution

The application

[1] Mrs X and Mr X are married but estranged. Issues of relationship property are before the Family Court.

[2] The defendant (Company B) is the registered proprietor of property in

[location redacted] (the Company B land).

MRS X v COMPANY B [2014] NZHC 2197 [10 September 2014]

[3] Mrs X registered a notice of claim under s 42 Property (Relationships) Act

1976 (PRA) against the Company B land. By a judgment dated 4 September 2014,1

I dismissed Mrs X’s application for an order that the relevant notice of claim not lapse.

[4] Mrs X makes application for an order staying the enforcement of the 4

September 2014 judgment.
[5] Immediately following the judgment, Mrs X filed this application for a stay. [6] The first ground of application is that an appeal was being made that day to

the Court of Appeal against the judgment. Ms Corry has informed me today that the appeal was promptly filed and now has to be progressed.

[7] The second ground of application is that the right of appeal will be rendered nugatory if the stay is not granted.

[8] Mrs X has filed evidence in support of her application.

The subject matter of Mrs X’s claim

[9] In her notice of claim under s 42 PRA, Mrs X stated:

Mrs X is the spouse of Mr X of [location redacted], Property Investor, who is the beneficial owner of the land described below by way of an arrangement between Mr X and the Registered Proprietor of the said land Company B (“Company B”) by virtue of:

a. A constructive trust or express or implied trust or common intention trust, between Mr X and Company B whereby Mr X is the beneficial owner of the estate

b. Mr X is the beneficial owner of the land, irrespective of the ownership structure

c The beneficial ownership of Mr X is relationship property.

[10] A more detailed history of the respective positions of Mrs X and Company B

is contained in the 4 September 2014 judgment. Company B is the corporate trustee

of the H Trust which may be described as a X Family Trust (settled by Mr X’s mother in 1996). Company B is the sole trustee. The discretionary beneficiaries include Mr and Mrs X and their children. In July 2012, Company B entered into an agreement to sell the Company B land to [company name redacted] as a trustee of the…

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.

Keep reading for free

Create a free CaseChat account to read Mrs X v Company B and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 2197
Decision Date: 10 September 2014

CaseChat Overview and Summary

Mrs X applied for a stay of execution of a judgment of the High Court, which had dismissed her claim to a notice of claim on certain property. The respondent, Company B, opposed the application. The primary issue for the Court was whether the applicant's right of appeal would be rendered nugatory if the stay was not granted. The Court held that the appeal would almost inevitably be rendered nugatory if the stay was not granted, as the transfer of the property to the P Trust would almost certainly occur in the meantime. However, the Court also found that the undertakings provided by Trustee Company E and Company B significantly protected Mrs X for the time being by cutting across any distribution to any beneficiary and by limiting payments so as to be in relation to legitimate obligations and expenses. The Court concluded that the justice of the case required that the application for a stay of execution be refused. The Court stayed the judgment pending the outcome of any stay application in the Court of Appeal on condition that Mrs X files any application to the Court of Appeal for a stay within 15 working days and promptly pursues a hearing.
In addition to the main judgment, the Court made several other orders. The Court ordered that the Court file insofar as it relates to this application and judgment may be accessed or searched only by leave of the Court. The Court also ordered that there be a suppression order in terms of the banner appearing at the top of this judgment, and an order precluding public search of the file without order of the Court. These orders were made to protect the commercial sensitivities of the parties involved.

Orders