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Putt v Putt

Putt v Putt

Case [2018] NZHC 1849 24 July 2018

Unconscionable Conduct

Admissibility of Evidence

Limitation Periods

Property Law

Equity & Trusts

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-001013

[2018] NZHC 1849

BETWEEN
FREDERICK JAMES PUTT

Applicant

AND

JEFFREY PAUL PUTT and DEIDRE COREN LATTELL

Respondents

Hearing: 9 July 2018

Appearances:

S Connolly for the Applicant

T J P Bowler for the Respondents

Judgment:

24 July 2018

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on
24.07.18 at 3:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

F J PUTT v J P PUTT and D C LATTELL [2018] NZHC 1849 [24 July 2018]

Introduction

[1] The applicant, Frederick Putt (Fred Putt) is the father of Jeffrey Putt, one of the respondents. Deidre Lattell, the other respondent, is the partner of Jeffrey Putt.

[2] Jeffrey Putt and Deidre Lattell are the registered proprietors of a property at 9B Jellicoe Avenue, Tuakau. Fred Putt lives at the property. Following an attempt by Jeffrey and Deidre to market the property for sale, Fred lodged a caveat claiming to be a beneficial owner of the property as a cestui que trust of which the respondents are trustees.

[3] Fred now makes application pursuant to Section 145 of the Land Transfer Act 1952 for an order that caveat no. 10753046.1 registered against the property (identifier NA 34B/944 North Auckland Registry) not lapse.

[4] The critical issue I must determine is whether Fred Putt has a reasonably arguable case that he has a beneficial interest in the land. That turns in large part on whether funds of $165,000.00 provided by Fred and used for the purchase of the property were simply an unsecured loan from Fred to Jeffrey or whether there is a tenable basis for proprietary relief.

Relevant principles

[5] A caveator, in response to the caveat lapsing procedure under the Land Transfer Act 1952, may apply for an order that the caveat not lapse.1

[6]I adopt these principles in relation to Frederick Putt’s application:2

(a)The burden of establishing that the applicant has a reasonably arguable case for the interest claimed is upon the caveator;3

1      Land Transfer Act, s 145.
2      Cube Building Solutions Limited v Kingloch Holdings Limited HC Christchurch CIV 2009-409- 000935, 15 October 2010.
3      New Zealand Limousin Cattle Breeders Society Inc v Robertson [1984] 1 NZLR 41 (CA) at 43; Coltart v Lepionka & Company Investments Ltd [2016] NZCA 102, [2016] 3 NZLR 36 at [30]; citing National Bank of New Zealand v Radisich HC Hamilton CIV 2003-419-928, 25 August 2003 at [6].

(b)The caveator must show an entitlement to, or beneficial interest in, the estate referred to in the caveat by virtue of an unregistered agreement or an instrument or transmission, or of any trust expressed or implied;4

(c)The summary procedure involved in an application of this nature is wholly unsuitable for the determination of disputed questions of fact5 - an order for removal of the caveat will not be made unless it is clear that the caveat…

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 Putt v Putt

Details

AGLC: Putt v Putt [2018] NZHC 1849
Case: [2018] NZHC 1849
Decision Date: 24 July 2018

CaseChat Overview and Summary

The case of Putt v Putt involved a dispute over the ownership of a property at 9B Jellicoe Avenue, Tuakau, between Frederick James Putt, the father, and Jeffrey Paul Putt and Deidre Coren Lattell, the son and his partner. The father lodged a caveat against the property, claiming a beneficial interest as a cestui que trust, while the son and his partner sought to have the caveat removed. The central legal issue was whether the father had a reasonably arguable case for claiming a beneficial interest in the property. This depended on whether funds provided by the father were a loan or whether there was a tenable basis for proprietary relief.

The court examined the father's claims under estoppel, unconscionable bargain, undue influence, and breach of fiduciary duty. The father argued that he had a belief or expectation that he would own the property, that he had relied on this belief, and that he would suffer detriment if it were not fulfilled. The court found that there was an arguable case for estoppel. Additionally, the court found that there was an arguable case for unconscionable bargain, as the father was in a vulnerable position and the transaction was substantially disadvantageous to him.

Given that the father had an arguable case for a beneficial interest in the property, the court exercised its discretion to allow the caveat to remain in place. The court ordered that the interim order preventing the caveat from lapsing be confirmed and that the father institute and prosecute the substantive proceedings diligently. The father was also awarded costs against the son and his partner.

Orders