Patterson v Alsaloom - [2020] NZHC 2307

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-188

[2020] NZHC 2307

UNDER Section 143(3) of the Land Transfer Act 2017

IN THE MATTER OF

an application by the applicant that Caveat No.11519692.1 (North Auckland Land Registry) not lapse

BETWEEN

KEVIN BARRY PATTERSON

Applicant

AND

RAFAD ALSALOOM and RMC TRUST COMPANY LIMITED

Respondents

Hearing: 6 August 2020

Appearances:

RO Parmenter for the Applicant DJ Rooke for the Respondents

Judgment:

4 September 2020

RESERVED JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 4 September 2020 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
R Parmenter, Auckland
Gibbs Mills Livingstone, Auckland

Patterson v Alsaloom [2020] NZHC 2307 [4 September 2020]

[1] The applicant (Mr Patterson) applies for an order under s 143 of the Land Transfer Act 2017 (the LTA) that a caveat registered by him on the title to a property owned by the respondents at 20 Sommerville Road, Howick (the property), not lapse.

[2] The caveat (No.11519692.1 – “the caveat”) was registered by Mr Patterson on 11 October 2019. The claimed estate or interest in the property, as described in the caveat, was “as cestui que trust of which the Registered Proprietor is a trustee”. In his submissions for Mr Patterson, Mr Parmenter advised that the trust on which Mr Patterson relies is of the “institutional constructive trust” kind (described later in this judgment), arising from an oral understanding between the parties, and subsequent payments made by Mr Patterson into a joint bank account opened by the parties, from which the costs of certain rebuilding work on the property was paid. Mr Patterson says that the payments he made, and certain work he carried out on the property, were made and done on the basis that he would receive in exchange an ownership interest in the property.

[3] The respondents oppose the application. They say that the caveat insufficiently describes Mr Patterson’s claimed interest, and that he has no estate or interest in the property in any event.

Background

[4] In June 2018 Mr Patterson, who had been a tenant in a house on the property (“the house”) for over five years, received from the respondents a formal 42 days’ notice to terminate the tenancy. The notice was given on the basis that the respondents wished to sell the property. Mr Patterson began looking for new accommodation.

[5] Mr Patterson says that his household during the term of his tenancy consisted of himself and four other people, none of whom were family members. Over the years, he had had a variety of flatmates living in the house.

[6] On 24 September 2018, the house caught fire. It appears that the fire was deliberately lit by one of Mr Patterson’s flatmates/sub-tenants, with whom he had had an argument. In any event, the house was seriously damaged, beyond the point where it could be occupied by Mr Patterson and his…

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 Patterson v Alsaloom

Details

AGLC: Patterson v Alsaloom [2020] NZHC 2307
Case: [2020] NZHC 2307
Decision Date: 4 September 2020

CaseChat Overview and Summary

The applicant, Mr Patterson, applied for an order under s 143 of the Land Transfer Act 2017 (the LTA) that a caveat registered by him on the title to a property owned by the respondents, not lapse. The caveat was registered on 11 October 2019. Mr Patterson claimed an interest in the property as cestui que trust of which the registered proprietor is a trustee. The respondents opposed the application, arguing that the caveat was insufficiently descriptive of Mr Patterson’s claimed interest, and that he had no estate or interest in the property in any event. There were three issues for determination: whether the claimed estate or interest in the property was sufficiently described in the caveat; whether it was reasonably arguable for Mr Patterson that there was an institutional constructive trust of the kind he had alleged; and if the answer to Issue 2 was “yes”, whether the Court should nevertheless exercise its discretion to refuse to make an order that the caveat not lapse. The Court held that the caveat was sufficiently descriptive of the interest claimed, that it was reasonably arguable that there was an institutional constructive trust of the kind Mr Patterson had alleged, and that the Court should not exercise its discretion to refuse to make an order that the caveat not lapse. The Court made the following orders: (1) that the caveat (Caveat No. 11519692.1) not lapse; (2) directing Mr Patterson to commence a proceeding in this Court for declaratory or other appropriate relief vindicating his claim to an institutional constructive trust in the property, within 20 working days; and (3) costs are awarded to Mr Patterson on a 2B basis, with disbursements to be fixed by the Registrar.

Orders