Poros v Bax - [2015] NZHC 1579

THIS JUDGMENT IS TO BE RELEASED TO THE PARTIES AT 4.30 PM, 7
JULY 2015 AND IS TO BE RELEASED PUBLICLY 48 HOURS LATER

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002698 [2015] NZHC 1579

IN THE MATTER OF the Property (Relationships) Act 1976

BETWEEN

SPYRIDON POROS Intended Applicant

AND

KYLIE BRIDGET BAX Intended Respondent

Hearing: 6 July 2015

Appearances:

J L W Green for Intended Applicant
C F L Godinet for Intended Defendant

Judgment:

7 July 2015

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to an application for pre-commencement discovery

This judgment was delivered by me at 4.30 pm on 7 July 2015 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

POROS v BAX [2015] NZHC 1579 [7 July 2015]

The application

[1] Spyridon Poros (Mr Poros) applies for an order of pre-commencement discovery. Kylie Bax (Ms Bax) is named as the single intended respondent.

Mr Poros’s substantive claim

[2] The claim which Mr Poros wishes to pursue in this Court relates to relationship property arising from his marriage to Ms Bax. The basis of his claim as identified by Mr Poros is:

(a) Mr Poros and Ms Bax were married on 18 August 2004 and lived together until they separated on 28 May 2014.

(b)On 7 September 2013, Mr Poros and Ms Bax (“or nominee”) entered into a written agreement (the agreement) to purchase a Cambridge property (the property), both signing as purchasers.

(c) The agreement as typed indicated that Mr Poros and Ms Bax were purchasing as trustees of the Goldeye Trust, but the reference to a trusteeship was deleted when they executed the agreement (the amendment being initialled).

(d) Mr Poros and Ms Bax, on the written form of agreement, identified an

Auckland practitioner as their lawyer.

(e) The property was intended to and did become their family home. (f) Mr Poros was never requested to nominate another purchaser.
(g)After the parties’ separation, Mr Poros was served with a trespass notice in relation to property, issued on behalf of Ms Bax’s parents as trustees of the Goldeye Trust and as registered proprietors of the property.

(h) It has transpired that:

(i) Mr Poros was never registered as a proprietor of the property.

(ii) Upon settlement of the purchase, the title was on 29 November

2013 registered in the names of Ms Bax and her parents.

(iii)On 12 February 2014, the title was transferred into the names of Ms Bax’s parents alone, Ms Bax thereby ceasing to be a registered proprietor.

(iv) Three months later, the parties’ separation occurred.

(v)Mr Poros then discovered what dealings had occurred on the title – he caveated the title, claiming a beneficial interest jointly with Ms Bax by reason of a resulting or constructive trust arising from the circumstances identified above.

[3] These matters are all identifiable in affidavits filed by Mr Poros.

The procedural background

[4] Mr Poros, expressly under the Property (Relationships) Act 1976 (the PRA), filed in the Family Court the initial version of…

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 Poros v Bax

Details

AGLC: Poros v Bax [2015] NZHC 1579
Case: [2015] NZHC 1579
Decision Date: 7 July 2015

CaseChat Overview and Summary

Spyridon Poros has applied for an order for pre-commencement discovery against Kylie Bax, who is his former spouse. Mr Poros wishes to pursue a claim for relationship property arising from his marriage to Ms Bax. The claim is based on their purchase of a property in Cambridge, which was registered in the names of Ms Bax and her parents. The property was intended to be their family home. Mr Poros was not registered as a proprietor of the property. Ms Bax’s parents issued a trespass notice against Mr Poros after the parties’ separation. Mr Poros claims a beneficial interest in the property jointly with Ms Bax by reason of a resulting or constructive trust. The application for pre-commencement discovery seeks documents relating to the purchase of the property and the Goldeye Trust, of which Ms Bax’s parents are trustees. The court considered whether Mr Poros requires the documents for the purpose of articulating and properly pleading his relationship property claim against Ms Bax. The court found that Mr Poros had sufficient information to formulate his claim and that the requested documents were not necessary for pleading purposes. The court also found that it would be inappropriate to order pre-commencement discovery against Ms Bax’s parents, who were not identified as intended respondents in the application. The court dismissed the application in its entirety and ordered that costs follow the event.

Orders