Nuku v Taylor - [2014] NZCA 312

IN THE COURT OF APPEAL OF NEW ZEALAND

CA99/2014
[2014] NZCA 312

BETWEEN	JEAN TE URUHAU NUKU Appellant
AND	LOMA EMIRI TAYLOR AND PETER DAVID TAYLOR Respondents

Hearing:	19 June 2014
Court:	Ellen France, Venning and Mallon JJ
Counsel:	J W G Grant for Appellant S M Cooper for Respondents
Judgment:	8 July 2014 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed. The caveat described in the application before the High Court is to lapse. If necessary, the solicitors for the appellant are authorised to sign a withdrawal of caveat.

B There is no order as to costs.

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REASONS OF THE COURT

(Given by Venning J)

Jean Nuku owns a property at 236 Smart Road, New Plymouth (the property). In a decision delivered on 30 January 2014 Courtney J dismissed an application by Jean Nuku for an order removing a caveat the respondents had lodged against the property.[1] Mrs Nuku appeals from that decision.

Background

[1]Nuku v Taylor [2014] NZHC 30. The reasons decision was delivered on 3 February 2014.

Mrs Nuku and her three brothers acquired the property as joint tenants from their mother, Mereaina Taylor, in 1985 shortly before she died. Mrs Nuku’s brothers have since died leaving her the sole owner by virtue of survivorship.
In late 2013 Mrs Nuku decided to sell the property to enable her to buy another property in Hawera so that she could be closer to her husband, who had been admitted to a rest home in Eltham.
When the respondents, who are Mrs Nuku’s sister-in-law and nephew, learned of the sale they registered a caveat against the property.
The caveat claims the following interest in the property:
The caveators, who are children of Michael Taylor, claim an interest in the land in that they, together with Jean Te Uruhau Nuku, and other children of the said Jean Te Uruhau Nuku, Donald Andrew Taylor, Michael Taylor and Tukitahi Taylor are beneficiaries of a constructive or resulting trust created when Mereaina Taylor transferred the land to her children Jean Te Uruhau Nuku, Donald Andrew Taylor, Michael Taylor and Tukitahi Taylor in April 1985 and in respect of such trust the Registered Proprietor, Jean Te Uruhau Nuku, is the remaining trustee following the deaths of Donald Andrew Taylor, Michael Taylor and Tukitahi Taylor.

The High Court decision

The matter came before Courtney J as a matter of urgency. The sale of the property and Mrs Nuku’s purchase were both due for settlement on 31 January 2014. After hearing argument on the 30 January, the Judge refused Mrs Nuku’s application with reasons to follow. In her reasons (delivered promptly on 3 February), the Judge considered that it was reasonably arguable Mrs Nuku held the property as a constructive trustee.[2] The Judge noted that following the transfer of the property to Mrs Nuku and her brothers it had been used as a home base available to any of the whanau who might need it and, following the death of…

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 Nuku v Taylor

Details

AGLC: Nuku v Taylor [2014] NZCA 312
Case: [2014] NZCA 312
Decision Date: 8 July 2014 at 10 am

CaseChat Overview and Summary

The appeal before the Court of Appeal of New Zealand in Nuku v Taylor involved Jean Te Uruhau Nuku, the appellant, who sought to remove a caveat lodged by Loma Emiri Taylor and Peter David Taylor, the respondents, against a property at 236 Smart Road, New Plymouth. The respondents claimed an interest in the property as beneficiaries of a constructive or resulting trust created when the property was transferred to Nuku and her brothers in 1985. The High Court dismissed Nuku's application to remove the caveat, finding that it was reasonably arguable that she held the property as a constructive trustee. Nuku appealed this decision to the Court of Appeal.

The central legal issue the Court of Appeal had to decide was whether it was reasonably arguable that the respondents had a beneficial interest in the property that could support the caveat. This required determining whether the property was transferred in 1985 subject to an express or institutional constructive trust. The Court of Appeal considered that if such a trust existed, it would have to be based on an oral express trust imposed on Nuku and her brothers when they acquired the property. The Court found that the evidence did not support the existence of such a trust. The transfer document indicated the property was purchased for $40,000, which suggested no trust was intended. Furthermore, the statements from the respondents did not clearly articulate the terms of the alleged trust.

The Court of Appeal concluded that the respondents failed to establish a reasonably arguable case for their claimed interest in the property. The evidence, including the transfer document and Nuku's deposition, did not support the existence of a trust. The general wishes expressed by the deceased regarding the property's use did not satisfy the requirement for clearly articulated trust terms. Consequently, the appeal was allowed, the caveat was to lapse, and the property could be sold.

There was no order for costs in the High Court, and the Court of Appeal made no order for costs as the respondents were legally aided. The appeal allowed Nuku to proceed with the sale of the property without the impediment of the respondents' caveat.

Orders