Nuku v Taylor - [2014] NZHC 37

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2014-443-000001 [2014] NZHC 37

IN THE MATTER of Section 143 of the Land Transfer Act
1952

BETWEEN JEAN TE URUHAU NUKU Plaintiff

ANDLOMA EMIRI TAYLOR and PETER DAVID TAYLOR
Defendants

Hearing: 30 January 2014

Appearances: G J Toebes for Plaintiff
R T Wilson for Defendants

Judgment: 3 February 2014

REASONS JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 3 February 2014 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………………

NUKU v TAYLOR [2014] NZHC 37 [3 February 2014]

Introduction

[1] On 30 January 2014 I dismissed an application by the plaintiff, Jean Te Uruhau Nuku, for an order for the removal of a caveat.1 The matter was heard urgently because Mrs Nuku had committed herself to agreements to sell 236 Smart Road and purchase another property. Both transactions were due for settlement on
31 January 2014. I gave my decision with reasons to follow. These are my reasons.

[2] Mrs Nuku is the registered proprietor of land contained in certificate of title TN243/73 in the Taranaki registry. She and her three brothers acquired the land as joint tenants from their mother, Mereaina Taylor shortly before she died in 1985. There was no mention in the evidence as to consideration for the transfer and I infer from the circumstances of the transfer that there was no monetary consideration. Mrs Nuku’s brothers have since died, leaving her the sole owner by virtue of survivorship.

[3] The issue on the application was whether it was reasonably arguable that Mrs Nuku held the land on constructive trust for the wider whanau. A person claiming to be entitled to or beneficially interested in any estate in land may lodge a caveat against dealings.2 A caveatable interest for this purpose includes a beneficiary under a trust. It is not necessary that the claimed interest be registerable. On an application under s 143 it is for the caveator to justify the continued existence of the caveat by showing that there is a reasonably arguable case for the claimed interest.3

[4] The first defendant, Loma Emeri Taylor, is the widow of Mrs Nuku’s brother, Michael Taylor. The second defendant is Michael’s son, Peter Taylor. They claim an interest in the land as beneficiaries of a constructive trust that precludes Mrs Nuku dealing with the land for her own benefit. The constructive trust asserted by the caveators is said to have arisen from the circumstances in which Mrs Taylor transferred the land. They say that she did so in the belief that the property could be treated as Maori land and would be maintained for the benefit of the whanau as if it
were Maori land and that this was well known to her children, including Mrs Nuku.

1      Section 143 Land Transfer Act 1952.
2      Section 137 Land Transfer Act 1952.
3      Sims v Lowe [1988] 1 NZLR 656 at 660.

[5] The claimed interest…

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] NZHC 37
Case: [2014] NZHC 37
Decision Date: 3 February 2014

CaseChat Overview and Summary

Nuku v Taylor [2014] NZHC 37 involved an application by the plaintiff, Jean Te Uruhau Nuku, for an order for the removal of a caveat. The defendants, Loma Emeri Taylor and Peter David Taylor, claimed an interest in the land as beneficiaries of a constructive trust. The legal issue was whether it was reasonably arguable that Mrs Nuku held the land on constructive trust for the wider whanau. Justice Courtney found that it was reasonably arguable that Mrs Nuku took the property on the basis offered by her mother and it is not open to her now to go back on that acceptance. The court dismissed the application for an order for the removal of a caveat. This decision was made on the basis that it was reasonably arguable that Mrs Taylor did not appreciate or intend that the transfer of her land to her children as joint tenants would have the result of conferring beneficial ownership on the ultimate survivor to the exclusion of other members of the family. Additionally, it was also arguable that all the children, including Mrs Nuku, understood Mrs Taylor’s intentions and accepted the transfer on that basis.

Orders