Paul v Paul - [2014] NZCA 549

IN THE COURT OF APPEAL OF NEW ZEALAND

CA621/2013
CA25/2014
[2014] NZCA 549

BETWEEN	ROBERTA LORRAINE PAUL Appellant
AND	CORENE GEORGINA PAUL Respondent

Hearing:	20 October 2014
Court:	Miller, Heath and Dobson JJ
Counsel:	T M Braun and N J Edwards for Appellant F C K Wood for Respondent
Judgment:	17 November 2014 at 11.30 am

JUDGMENT OF THE COURT

A The appeal (in CA621/2013) against the High Court’s judgment of 16 August 2013 is allowed. The order dismissing the application that a caveat not lapse is set aside. In substitution, an order is made that caveat 9324433.1 lodged against the property at 27 Old Quarry Road, Rotorua, more particularly described in Certificate of Title SA6D/347, not lapse.
BThe appeal (in CA25/2014) against the High Court’s judgment of 4 December 2013 is dismissed.
CThe orders for costs made in the High Court are set aside. In substitution, there is no order as to costs on either application in that Court.
DNo order as to costs in this Court.

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REASONS OF THE COURT

(Given by Heath J)

The appeal

Mrs Corene Paul (Mrs Paul) and her daughter, Ms Roberta Paul (Roberta), have become embroiled in litigation about whether Roberta has a proprietary interest in a property owned by her mother at 27 Old Quarry Road, Rotorua. Roberta has claimed an interest in the property on two distinct grounds. One is under an oral agreement for sale and purchase (entered into in May or June 2005) of which Roberta claims there has been partial performance. The other is said to arise out of an unregistered mortgage to protect a loan made by Roberta to her mother in 1996.
On 27 February 2013, following a breakdown in family relations earlier in that year, Roberta lodged a caveat against the Old Quarry Road property to protect the interest asserted under the oral agreement for sale and purchase. An application was made on 31 May 2013 to sustain that caveat.[1] In a judgment delivered on 16 August 2013, in the High Court at Rotorua, Associate Judge Christiansen dismissed that application and ordered Roberta to pay costs to her mother.[2]
[1]The application was made under s 145A of the Land Transfer Act 1952.
[2]Paul v Paul [2013] NZHC 2076.
On 20 August 2013, a few days after the Associate Judge’s decision had been handed down, Roberta lodged a second caveat.[3] This caveat purported to protect the interest claimed under the alleged unregistered mortgage. On 25 September 2013, Roberta applied for an order that the second caveat not lapse.[4] That application was also heard by Associate Judge Christiansen. In a judgment given on 4 December 2013, he dismissed the application, with costs in favour of Mrs Paul.[5]
[3]As this caveat sought to protect an interest in land that was not claimed in the first it was not necessary for Roberta to obtain an order from the High Court to allow a second caveat to be lodged: Land Transfer Act, s 148(1).
[4]Under s 145A…

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 Paul v Paul

Details

AGLC: Paul v Paul [2014] NZCA 549
Case: [2014] NZCA 549
Decision Date: 17 November 2014 at 11.30 am

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the case of Roberta Lorraine Paul v. Corene Georgina Paul was heard on appeal from two separate judgments of the High Court at Rotorua. The appeals involved two caveats lodged by Roberta against a property owned by Corene at 27 Old Quarry Road, Rotorua. The first appeal related to an application to sustain a caveat which was dismissed by Associate Judge Christiansen on 16 August 2013. The second appeal concerned an application to prevent a second caveat from lapsing, which was also dismissed on 4 December 2013. The central legal issues revolved around whether Roberta had established a reasonably arguable case for the proprietary interests she claimed under the caveats.

The Court of Appeal found that the Associate Judge had erred in dismissing Roberta's application to sustain the first caveat. The judges held that Roberta's evidence, which was supported by payment of a substantial deposit, was credible enough to establish a reasonably arguable case for an oral agreement for the sale of the property. They concluded that the Judge had weighed the evidence in a manner inappropriate for a summary determination, akin to a trial decision rather than one reflecting a summary decision on the sustainment of a caveat. The Court of Appeal thus allowed the appeal in relation to the first caveat, set aside the order dismissing the application, and ordered that the caveat not lapse.

The second appeal, concerning the application to prevent the second caveat from lapsing, was dismissed. The Court found that the evidence supporting the interest claimed under the second caveat was inherently implausible and did not establish a reasonably arguable case. The judges also expressed concerns about the second caveat being an inappropriate attempt to pressure Corene in the context of a contested property claim.

In terms of costs, the Court of Appeal set aside the costs orders made in the High Court for both applications. In the High Court, neither party would be able to recover costs from the other. The Court of Appeal made no order for costs in relation to the appeals before them, as each party had succeeded in one of the two appeals.

Orders