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Ogilvie v Li

Ogilvie v Li

Case [2023] NZHC 1629 28 June 2023

Constructive Trust

Equitable Estoppel

Contributions to Property

Reasonable Expectation

Property Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001826

[2023] NZHC 1629

BETWEEN
PAUL MATTHEW OGILVIE

Plaintiff

AND

MING SHEUNG LI and SHUI LIN LEE

Defendants

Hearing: 26-28 April 2023

Appearances:

M Locke for the Plaintiff

H Waalkens KC and S Courtney for the Defendants

Judgment:

28 June 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 28 June 2023 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

OGILVIE v LI [2023] NZHC 1629 [28 June 2023]

[1] Paul Ogilvie claims a property interest in the home he and his former wife lived in for over 14 years before they separated. The property is owned by, and registered in, the names of his former wife’s parents, the defendants.

[2] Mr Ogilvie met Ms Li in December 2003. They began dating. In July 2005, Mr Ogilvie moved into 2/39A Coronation Road, Auckland (the Property) where Ms Li was then living with flatmates.1

[3] The couple married in September 2007 in Hong Kong. There are two children of the marriage, born in 2011 and 2013.

[4] The couple separated in February 2019. The marriage was dissolved in May 2021. Ms Li remained in the Property after separation. The children have been in Mr Ogilvie’s full-time care since separation. There have been Family Court proceedings relating to care of the children.

[5] At separation, there was an insignificant relationship property pool. The Property is not part of the pool of relationship assets for division under the Property (Relationships) Act 1976 (the Act). Therein lies the problem for Mr Ogilvie.

[6] Mr Ogilvie left the marriage with nothing to show for it financially. He argues that his direct and indirect contributions to the Property, representations to him and sacrifices on his part in the context of the relationship:

(a)created a reasonable expectation justifying the remedy of constructive trust to avoid unjustly enriching the defendants; or

(b)estop the defendants from denying his interest in the Property.

[7] As his “expectation” has not been realised, Mr Ogilvie seeks the intervention of this Court. The Property has significantly increased in value. The purchase price paid by the defendants in 2004 was $323,000. No expert valuation evidence was led

1 The Property is variously referred to as 2/39A and 39B Coronation Road.

but according to Auckland Council records, the ratings valuation of the Property as at separation in early 2019 was $890,000. The ratings valuation is currently $1,075,000.2

[8] The defendants deny making any promise or representation to Mr Ogilvie and deny that they clothed their daughter with authority or otherwise authorised their daughter to make any promises or representations to Mr Ogilvie. Ms Li also denies making any alleged promises or representations to Mr Ogilvie. She supports and corroborates her parents’ defence.

[9] They argue that Mr Ogilvie could not have reasonably held any expectation of an interest in the Property. They dispute his evidence of reliance and detriment and…

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 Ogilvie v Li

Details

AGLC: Ogilvie v Li [2023] NZHC 1629
Case: [2023] NZHC 1629
Decision Date: 28 June 2023

CaseChat Overview and Summary

In Ogilvie v Li, the plaintiff, Paul Ogilvie, sought a declaration that the defendants, Ming Sheuang Li's parents, held half of the Property subject to a remedial constructive trust in his favour, or alternatively, that the court adopt a combined "contributions-based and compensatory approach." Ogilvie based his claim on his contributions to the property and the reasonable expectation he held, justified by representations made to him by Li and her parents. The court had to determine if Ogilvie made more than minor direct or indirect contributions to the Property, if it was reasonable for him to expect an interest in the Property, and if the defendants should reasonably expect to yield him an interest.

The court found that Ogilvie did not make more than minor direct or indirect contributions to the property. The payments made by Ogilvie and Li to the defendants were applied to meet the mortgage instalments, but they did not manifestly exceed the benefits Ogilvie received from living in the property. Furthermore, the court found that Ogilvie's work and services on the property did not justify an entitlement to a beneficial interest. It was not reasonable for Ogilvie to expect an interest in the property based on Li's conduct, as the defendants did not create an expectation of an interest in the property, nor did Li create one with actual or ostensible authority. The court concluded that the plaintiff had not made out the required elements for a constructive trust or equitable estoppel, and dismissed his claim.

In summary, the court dismissed Ogilvie's claim for a property interest in the home he and his former wife lived in for over 14 years before they separated. The court found that Ogilvie did not make significant enough contributions to the property, nor was it reasonable for him to expect an interest in the property based on the representations made to him by Li and her parents.

Orders