Rickard v Bethell - [2012] NZHC 411

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-8075 [2012] NZHC 411

UNDER s 145A Land Transfer Act 1952

IN THE MATTER OF Caveat 7025844.2

BETWEEN CHRISTINE ANNE RICKARD Applicant

ANDVICTORIA ELIZABETH BETHELL Respondent

Hearing: 7 March 2012

Appearances: R J Thompson for Applicant
S A Grant for Respondent

Judgment: 13 March 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 13 March 2012 at 2 pm
pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:
Patterson Hopkins, Auckland – email: bill@pattersonhopkins.co.nz

Davenports, Henderson – email: rosalind.rassie@davenportswest.co.nz

Counsel:
R J Thompson, Barrister, Auckland – email: richjt@woosh.co.nz

S A Grant, Shortland Chambers, Auckland – email: sgrant@shortlandchambers.co.nz

RICKARD V BETHELL HC AK CIV 2011-404-8075 [13 March 2012]

[1] The applicant seeks an order that a caveat not lapse. The respondent opposes the making of the order sought and contends that the applicant does not have a caveatable interest in the land subject to the caveat. The respondent also submits that the balance of convenience lies in declining the application.

[2] The applicant’s caveat, being 7025844.2 (“the caveat”), is lodged against CT NA6B/653. The respondent is the registered proprietor of the land comprised and described in CT NA6B/653 (“the land”) in her capacity as trustee and executrix of the estate of Ross McKay Bethell (“Ross”). Ross died intestate in October 2008 and the caveat is delaying completion of the administration of his estate.

[3] I propose to make an order that the caveat not lapse. I am satisfied that the applicant has an arguable case for a caveatable interest in the land and that the balance of convenience lies in her favour. That said, the applicant must commence proceedings to determine her rights to the land in question, and she must do so as a matter of urgency. I consider the applicant has delayed doing so for longer than is appropriate, despite the fact that this is an intra-family dispute which the parties have attempted to resolve by agreement.

Principles

[4] The applicant as caveator has the onus of demonstrating a reasonably arguable case for the interest that she claims in the caveat.[1] Even if she does so, the Court retains a discretion not to make an order and to allow the caveat to lapse, although the Court will exercise that discretion cautiously.[2]

[1] Sims v Lowe [1988] 1 NZLR 656 (CA).

[2] Pacific Homes Ltd (in receivership) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA).

[5] Accordingly, there are two issues to be considered, namely whether the applicant has an arguable case to a caveatable interest in the land and, if so, whether circumstances are such that the balance of convenience lies in the respondent’s
favour, meaning that I should decline to maintain the caveat.

[6] The interest claimed in the caveat is as follows:

As cestui que trust pursuant to clause 6(i) of a Deed of Family Arrangement dated on or about October 1987 whereby [the applicant] is entitled…

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 Rickard v Bethell

Details

AGLC: Rickard v Bethell [2012] NZHC 411
Case: [2012] NZHC 411
Decision Date: 13 March 2012

CaseChat Overview and Summary

Christine Anne Rickard applied to the High Court of New Zealand to prevent the lapse of a caveat she lodged against a property in Bethells Road, Bethells, Waitakere. The property is registered in the name of Victoria Elizabeth Bethell, who is the trustee and executrix of the estate of Ross McKay Bethell, who died intestate in October 2008. The respondent opposed the making of the order sought and contended that the applicant did not have a caveatable interest in the land subject to the caveat and that the balance of convenience lay in declining the application. The applicant's caveat was lodged against CT NA6B/653, which comprised the land in question. The applicant claimed a caveatable interest as cestui que trust pursuant to clause 6(i) of a Deed of Family Arrangement dated on or about October 1987, whereby she was entitled at any time, to call for a transfer by the registered proprietor, Ross, of up to 4 hectares being part of the land described in Certificate of Title NA6B/653. The court was required to determine whether the applicant had an arguable case for a caveatable interest in the land and, if so, whether circumstances were such that the balance of convenience lay in the respondent's favour, meaning that the court should decline to maintain the caveat. The court found that the applicant had an arguable case for a caveatable interest in the land and that the balance of convenience lay in her favour. The court emphasised that the applicant must commence proceedings to determine her rights to the land in question, and she must do so as a matter of urgency. The court made an order that caveat 7025844.2 registered against CT NA6B/653 not lapse. The applicant is entitled to an award of costs.

Orders