Parry v Parry - [2019] NZHC 2388

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001047

[2019] NZHC 2388

UNDER the Land Transfer Act 1952

IN THE MATTER

of an application under section 145A of the Land Transfer Act 1952

BETWEEN

MAXINE ALEXANDRA PARRY

Applicant

AND

MICHAEL PARRY

Respondent

Hearing: 9 September 2019

Appearances:

N R Holdaway for Applicant W Andrews for Respondent

Judgment:

20 September 2019

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me at 4.00 pm on 20 September 2019 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar
………….

PARRY v PARRY [2019] NZHC 2388 [20 September 2019]

Introduction

[1] The applicant (“Mrs Parry”) applies to sustain a notice of claim of interest (“the notice”) lodged pursuant to s 42(2) of the Property (Relationships) Act 1976 (the “Act”). She lodged the notice against the interest of her former husband (“Mr Parry”) in a property that he purchased, after the parties separated, with his present wife (“Kathleen”) at 69 Mahana Rd, Waimauku (“Mahana Rd”).

The late filing of affidavits

[2] Objection was taken by Ms Holdaway to the late filing of a second affidavit of Kathleen of 21 August 2019 and by Ms Andrews to the filing of a third affidavit of Mrs Parry of 29 August 2019. I heard submissions on the matter. Neither counsel identified any significant prejudice resulting from the filing of the affidavits. I have decided to receive them.

Facts

[3] Mr and Mrs Parry were married on 31 October 2004. They have one child, born in August 2004.

[4] Mrs Parry owned a property at Ellerslie, Auckland. She sold it and Mr and Mrs Parry together purchased a property at Mt Eden. The Mt Eden property was sold, and Mr and Mrs Parry purchased 191 Waikoukou Valley Rd (“the Waikoukou Valley Rd property”) in the name of a Trust.1 It is accepted that Mrs Parry contributed
$400,000 to the purchase. Mr Parry did not have funds to contribute at that time, but later he received $39,700 from the resolution of an employment dispute, which was used to install a pool at the property. The Waikoukou Valley Rd property was the family home.

[5] Mr and Mrs Parry incorporated a company called Waimauku Childcare Centre Limited (“the Company”).2 They were the only directors and shareholders. In October

1 There is no evidence as to when the Mt Eden property was sold.
2 Accounts of the company were exhibits to Mrs Parry’s affidavit of 29 August 2019. A Companies Office extract was submitted by Ms Andrews with her submissions, without objection from Ms Holdaway. It appears that in 2012 the company changed its name to Maxmik Ltd.

2006, the Company acquired the Waimauku Day Care Centre. The purchase price was entirely funded by a loan from ANZ Bank. The loan was secured by mortgage over the Waikoukou Valley Rd property and Mr and Mrs Parry acted as guarantors of the loan.

[6] Mr and Mrs Parry worked…

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 Parry v Parry

Details

AGLC: Parry v Parry [2019] NZHC 2388
Case: [2019] NZHC 2388
Decision Date: 20 September 2019

CaseChat Overview and Summary

Maxine Alexandra Parry sought to sustain a notice of claim of interest lodged against Michael Parry in relation to property he purchased with his current wife, Kathleen, at 69 Mahana Road, Waimauku. The primary issue was whether Mrs Parry had a valid claim to an interest in the property under the Property (Relationships) Act 1976. The court examined if the notice could be sustained based on the agreement between the parties, provisions of the Act, or a constructive trust. The court found that the agreement did not create any proprietary interest in Mahana Road and therefore did not sustain the notice. It was also determined that sections 44 and 44C of the Act did not apply as Mr Parry’s acquisition of the property was not a disposition for the purposes of those sections. Furthermore, the court held that Mrs Parry did not have a claim under a constructive trust as she made no qualifying contribution to the acquisition of the property. Consequently, the court ordered that the notice of claim be removed and Mr Parry was entitled to his costs on a 2B basis.

Orders