Rault-Smith v Clow - [2016] NZHC 2152

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1445 [2016] NZHC 2152

UNDER The Land Transfer Act 1952

IN THE MATTER

of a Notice Under Section 145A of the Land Transfer Act 1952 to lapse a Caveat No. 10422366.1 over Title NZ 1962/66

BETWEEN

J P RAULT-SMITH Applicant

AND

K V CLOW AND M B CLOW Respondents

Hearing: 2 September 2016

Appearances:

Mr Stuart for Applicant
Mr Skinner for Respondents

Judgment:

12 September 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
12.09.16 at 3.00 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

RAULT-SMITH v CLOW AND ANOR [2016] NZHC 2152 [12 September 2016]

[1] The applicant has applied for an order sustaining a caveat that she has lodged over a property at Wellsford. The ground upon which her application is made is as follows:

(a) The Plaintiff has a caveatable interest over the Defendant’s property (namely an equitable life interest in and right to occupy the cottage on the property) by virtue of an oral agreement between the Plaintiff and the Defendants whereby the Defendants undertook in consideration for direct and indirect contributions by the Plaintiff to the purchase and renovation of the property to hold the property in trust to allow the Plaintiff to occupy the cottage on the property for her life.

[2] The caveat itself states that the estate of interest claimed is in the following terms:

As beneficiary under an implied, constructive or resulting trust whereby the Registered Proprietors hold the property as trustees in trust as to a part share for the daveator.

[3] The case involving the caveat is an outgrowth of a very unfortunate family rift that has occurred between the caveator/applicant (“caveator”) and her daughter, (“the daughter”) the first named respondent, together with the daughter’s husband, the second named respondent.

[4] The daughter left her home country, South Africa, in or about 2000. In 2013 the caveator with her then husband, Stuart Smith, came to New Zealand. Before doing so, they had apparently given some consideration to how they would house themselves when they got to New Zealand. They did not expect that the results of liquidating their assets in South Africa would result in them having a great deal of New Zealand funds because of the poor exchange rate that would apply to any conversion into New Zealand currency. They discussed with the daughter where they could buy a house.

[5] Eventually it was agreed that a house at Glenbrook would fit their requirements and in December 2013 a property at Glenbrook (the Glenbrook house) was purchased. The house was purchased in the name of the respondents. The

respondents already owned a house that they had previously acquired at Glenfield in or about 2010.

[6] Prior to coming to New Zealand the applicant and her husband had transferred funds to New Zealand which were paid into the daughter’s account. The property at Glenbrook cost approximately $300,000. Approximately $200,000…

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.

Keep reading for free

Create a free CaseChat account to read Rault-Smith v Clow and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 2152
Decision Date: 12 September 2016

CaseChat Overview and Summary

The case of Rault-Smith v Clow involved a dispute over a property in Wellsford, where the applicant sought to sustain a caveat over the property based on an alleged equitable life interest and right to occupy the cottage on the property. The case was an outgrowth of a family rift between the applicant and her daughter, who had purchased the property together with her husband. The applicant had contributed significantly to the purchase and renovation of the property, which was initially bought in the name of the respondents. The applicant argued that an oral agreement existed whereby the respondents held the property in trust to allow her to occupy the cottage for her life.

The legal issues before the court were whether the applicant had a reasonably arguable case for an interest in the land sufficient to support the caveat, and if the court should exercise its discretion to sustain or remove the caveat. The court considered the principles of resulting trusts and constructive trusts, and whether the applicant had an arguable claim for a beneficial interest in the property. The court found that the applicant had a reasonably arguable case for a beneficial interest in the land, as the funds used for the purchase were partially contributed by her. The court also noted that the breakdown of the relationship between the parties did not preclude the sustenance of the caveat.

The court granted the applicant's application to sustain the caveat, finding that it would be unjust to deny her the right to protect her interest in the land at this stage. The respondents were ordered to pay costs on a 2B basis, along with disbursements as fixed by the Registrar. The court's decision was based on the applicant's arguable claim for a beneficial interest in the land, and the possibility that the court might exercise its residual discretion against sustaining the caveat in certain circumstances.

Orders