Samuels v McLaughlin

[2014] NZHC 122

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2010-463-000187 [2014] NZHC 122

BETWEEN  KELLEY MAHALIA SAMUELS Applicant

ANDESTATE OF HEEMI RAURU MCLAUGHLIN

Respondent

Hearing:                   11 February 2014

Appearances:           L Foley for the Applicant

Francis McLaughlin Executor Estate of Heemi Rauru

McLaughlin

Judgment:                11 February 2014

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

11.02.14 at 4:30pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

K M SAMUELS v ESTATE OF H R MCLAUGHLIN [2014] NZHC 122 [11 February 2014]

[1]      The issue concerns a property at 11 Pitiroi Street, Taupo.  On the 23 March

2010 the Court granted Mr Heemi McLaughlin’s application make for an interim order sustaining his caveat pending further order of the Court.  Mr McLaughlin had filed an appeal against the District Court judgment of Judge McGuire rejecting his claim of an interest in the property.  The learned Judge did find however that Ms K M Samuels and Ms I Westbury each owed Mr McLaughlin the sum of $24,000 plus interest.

[2]      Mr McLaughlin’s appeal was abandoned on 31 August 2012.

[3]      Ms Samuels wished to sell her quarter share interest in the property to her co- registered proprietors.  She agreed to pay a portion of the purchase price received by her  of  $36,275.20  to  the  solicitors  acting  for  the  estate  of  Heemi  McLaughlin. Indeed Mr Francis McLaughlin as the executor of that estate had signed an Authorisation and Instruction form to enable a withdrawal of a caveat over the property.

[4]      In early December 2013 the solicitors acting for the purchaser of Ms Samuels share confirmed they were in funds and wished to settle.   The estate’s solicitors responded with advice that they had no instructions to withdraw the caveat notwithstanding that the Authorisation and Instruction form was irrevocable.

[5]      In his address to the Court Mr Francis McLaughlin advises that he has been unhappy with the quality of legal advice given to him and to his now deceased father.   He wished to examine whether he has any further rights of appeal.   He explained his family’s close association with the property in question.

[6]      I informed Mr McLaughlin that the issue of ownership has long since been resolved; that Ms Samuels was entitled to sell her share but that his father’s estate would benefit significantly in that outcome.   I informed Mr McLaughlin that the Court had no option but to order that the caveat lodged on behalf of his father should lapse.

[7]      I informed Mr McLaughlin that Ms Samuels was entitled to costs upon her application and that those costs should be met from the funds payable to the estate.

Judgment

[8]      There is an order that caveat 7461738.1 registered against Certificate of Title

SA 1A/110, lapse.

[9]      The estate shall  pay costs  to  Ms  Samuels  calculated  on  a 2B basis  and amounting to $5,623.95 inclusive of disbursements.

[10]     The Court orders that the said sum of $5,623.95 can be deducted from any sum owing by Ms Samuels to the estate as determined in the District Court matter CIV 2009-463-855.

Associate Judge Christiansen