Paul v Paul - [2013] NZHC 3231

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2013-463-000375 [2013] NZHC 3231

UNDER
Section 145A of the Land Transfer Act

1952

IN THE MATTER

of an application that caveat not lapse

BETWEEN

ROBERTA LORRAINE PAUL Plaintiff

AND

CORENE GEORGINA PAUL Defendant

Hearing: 3 December 2013

Appearances:

N J Edwards for the Applicant
F Wood for the Defendant

Judgment:

4 December 2013

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
04.12.13 at 4:30 pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

R L PAUL v C G PAUL [2013] NZHC 3231 [4 December 2013]

[1] The applicant and respondent are daughter (Roberta) and mother (Corene). Their dispute concerns Corene’s property situated at 27 Old Quarry Road, Rotorua (the Property). Roberta and/or her children have lived there since 2001.

[2] On 27 February 2013 Roberta lodged a caveat against the Property. Roberta claimed an equitable interest in the Property alleging there was an agreement made in 2005 for her to purchase the Property. Roberta filed an application to sustain that caveat. Corene opposed that application. I heard the application on 14 August 2013. I issued a judgment on 16 August. I held:

[55] The evidence clearly supports the conclusion that no agreement for purchase was concluded, but that an option to purchase became available after Corene’s death.

[56] The right of occupancy and acquisition created by Corene’s Will was insufficient to create a proprietary right. Therefore there is no caveatable interest.

[57] The court is conscious of the fact that there is a significant dispute between the parties regarding the terms of their arrangement. However the Court does not consider that Roberta’s claims pass the threshold of credibility.

[3] Thereupon I dismissed Roberta’s application.

[4] Four days later on 20 August 2013 Roberta lodged a second caveat over the

Property. By that caveat Roberta:

Claims an equitable interest in the property at 27 Old Quarry Road, Rotorua as mortgagee under an agreement to mortgage that was granted by the registered proprietor, Corene Georgina Paul, on 20 August 1996. The agreement to mortgage is contained in a term loan contract dated 20 August
1996 between the caveator as lender and the registered proprietor as a caveator (together with her late husband). The term loan contract records an
advance of $50,000 from the caveator to the registered proprietor’s (and her late husband’s) former company, R G Paul Limited, on the basis of the
registered proprietor providing security for the loan advance that included, inter alia, the agreement to mortgage. The loan advance is repayable on demand. The loan advance has not been repaid and $50,000 remains
outstanding. The caveator has requested, by way of letter to the registered
proprietor’s solicitor dated 29 July 2013, that the registered proprietor
provide a registered mortgage on the all obligations form published by the Auckland District Law Society. The registered proprietor has not responded to this request.

[5] On 27 September 2013 Roberta applied to this Court…

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 [2013] NZHC 3231
Case: [2013] NZHC 3231
Decision Date: 4 December 2013

CaseChat Overview and Summary

The case of R L Paul v C G Paul [2013] NZHC 3231 was a dispute between mother and daughter, Corene Georgina Paul and Roberta Lorraine Paul, over the property situated at 27 Old Quarry Road, Rotorua. Roberta claimed an equitable interest in the property, alleging an agreement made in 2005 for her to purchase the property. Corene opposed the application to sustain the caveat, asserting that the loan had been repaid by purchasing shares in the dairy business on Roberta's behalf. The court was required to decide whether Roberta had a valid claim of an equitable interest in the property. The court found that there was no agreement for purchase concluded, but an option to purchase became available after Corene's death, which was insufficient to create a proprietary right. The court also found that there was no caveatable interest. The court dismissed Roberta's application to sustain the caveat and ordered costs to be paid by Roberta to Corene.

Orders