Scott v Grainger

[2017] NZHC 1447

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000156 [2017] NZHC 1447

BETWEEN

BIANCA FRANCES SCOTT

Plaintiff/Applicant

AND

PHILIP ROSS GRAINGER First Defendant

ROSS ARTHUR GRAINGER Second Defendant

Hearing:	27 June 2017
Appearances:	P K Tucker for Plaintiff/Applicant P R Grainger in person F A Grainger in person
Judgment:	27 June 2017

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      The applicant (Ms Scott) and the first defendant (Mr P R Grainger) formed a de facto relationship in either 2011 or 2012, and separated early in 2016.  In 2015 a house was bought in Leeston in which Ms Scott and Mr P R Grainger lived until they parted.   The title to the house is registered in the name of Mr P R Grainger and Mr R A Grainger.   Ms Scott claims an interest in the property under the Property (Relationships) Act 1976 (the PRA).  She also claims an interest under a constructive trust.

[2]      In respect of the former interest, she registered a notice of claim under s 42(2) of the PRA against the share of Mr P R Grainger, on 23 December 2016.  In respect of the latter, she registered a caveat against the title in May 2017 in which she says that Mr P R Grainger and Mr R A Grainger own the property as trustees, that Mr P R

Grainger is a beneficiary, and that she has an interest as cestui que trust on the basis

SCOTT v GRAINGER [2017] NZHC 1447 [27 June 2017]

that she has an interest in the interest that Mr P R Grainger has as a beneficiary in the trust.

[3]      Neither  Mr  P  R  Grainger  nor  Mr  R A Grainger  has  taken  any  step  to challenge the caveat.  However, in relation to the notice, Mr P R Grainger invoked s 145A of the Land Transfer Act 1972 with the result that the Registrar General of Lands gave notice to Ms Scott on 3 March 2017 that the notice would lapse in terms of that section unless an order was made sustaining it, and the order was registered within the requisite statutory period.

[4]      On 24 March 2017 the Court made an interim order that the notice not lapse until further order of the Court, and made directions for documents in opposition and in reply to be filed by certain dates.  The order also provided for submissions to be filed, and for a fixture on 15 May 2017.

[5]      Due to an error the order made by the Court was not filed with the Registrar General of Lands within the requisite statutory period, so the notice under the PRA lapsed.

[6]      On 3 May 2017 Ms Scott filed an application for leave to file a second notice of claim under the PRA, together with an affidavit in support.  On 9 May 2017 the Court dismissed the original application for an order that the notice of claim not lapse, and made directions in relation to the second application.  The Court directed that it be served on Mr P R Grainger and Mr R A Grainger, who were connected to the telephone conference in respect of which the minute was issued.   The Court acknowledged that by that point they were not in a position to file their opposition or to instruct counsel, though they indicated an intention to do both.   The Court adjourned the application for further consideration in the List on 18 May.

[7]      However, in the meantime the Court received advice that Mr P R Grainger would be representing himself.  He indicated a need to fit the hearing of the matter around his work commitments.   On 12 May the Court issued a minute making timetable  directions.     The  directions  included  an  order  that  if  either  of  the respondents intended to oppose the application he was to file and serve a notice of

opposition together with all evidence in opposition, by 26 May.  Ms Scott was given until 2 June to file and serve any affidavit in reply, and was directed to file submissions and supporting documents by 9 June.  Mr Grainger was directed to file submissions meeting the requirements set out in the minute for the submissions of Ms Scott, and a list of authorities on which the respondents intended to rely, by 16

June. The Court allocated a hearing at 10.30 am on 27 June.

[8]      Neither Mr P R Grainger nor Mr R A Grainger filed a notice of opposition, or an affidavit on the current application.   Neither of them sought an order that the affidavit  they  had  filed  on  the  earlier  application  be  read  on  this  application. Although  the  applicant  filed  submissions  (though  slightly  late)  neither  Mr  P R Grainger nor Mr R A Grainger filed submissions until the morning of the allocated hearing, 27 June.

[9]      At the beginning of the hearing I asked Mr P R Grainger whether he had served a notice of opposition, despite not having filed one.  He said that he had not. When asked why, he did not give any cogent reason for not having done so.  The best inference I can draw from what he said is that he thought the process in this court is a waste of time because the real issues to be decided will be determined in the Family Court.

[10]     Rule 7.24 of the High Court Rules provides:

Notice of opposition to application

(1)     A respondent who intends to oppose an application must file and serve on every other party a notice of opposition to the application within –

(a)     the  period  of  10  working  days  after  being  served  with  the application; or

(b)     if the hearing date for the application is within that period,

3 working days before the hearing date.

(2)     The notice of opposition must –

(a)     state the respondent’s intention to oppose the application and the grounds of opposition; and

(b)     refer  to  any  particular  enactments  or  principles  of  law  or judicial decisions on which the respondent relies.

(3)     The notice of opposition must be in form G 33.

[11]     It will be noted that each of the requirements of this rule is  phrased  in mandatory terms – each step must be taken.   As I explained to Mr Grainger the purpose of this rule is to give the other side to a case a clear statement of the basis upon which the order sought by that party is opposed.  This enables an applicant to construct  focussed  submissions,  and  also  forms  the  basis  of  submissions  in opposition which follow the grounds of opposition to the order being made.  It also gives the Court a clear and succinct statement of the points which must be decided one way or the other.  As I explained to Mr Grainger in court, it is part of a large body of rules which are intended to settle a level playing field for litigation, so that it can be conducted fairly, expeditiously, and without wasted time or cost.  As r 1.2 records, “The objective of these rules is to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application”.  This is the yardstick by which all High Court rules are to be interpreted.

[12]     Neither Mr P R Grainger nor Mr R A Grainger had given Ms Scott any indication, prior to the arrival of their submissions on the morning of the hearing, of the basis upon which they oppose the order being made.  This is far too late.  No sound reason has been given for r 7.24 not being complied with, let alone for the timetable orders made by the Court having been entirely disregarded.

[13]     In these circumstances I ruled at the hearing, and now record, that neither

Mr P R Grainger nor Mr R A Grainger would be heard.

[14]     Section 148 of the Land Transfer Act provides that if a caveat has lapsed, no second caveat may be lodged by the same person in respect of the same interest, except by order of the Court.   This section applies to notices under the PRA – s 42(3).

[15]     The Court has an unfettered discretion under s 148 but will generally have regard to the strength of the case made by an applicant, any explanation for a former caveat or PRA notice having lapsed, and whether unavoidable prejudice may be suffered by those who have acted in reliance on the register or in believing that the applicant was not pursuing a claim.1

[16]     Ms Scott and Mr P R Grainger were in a de facto relationship for a sufficient period for Ms Scott’s rights under the PRA to have arisen.  The evidence shows that they lived in the house on the property as their family home until their relationship ended.  Substantive proceedings have been brought in the Family Court to determine Ms Scott’s claim to an entitlement in the property and counsel informed me that this proceeding has been set down for a formal proof hearing on 4 August.

[17]     On the face of it, Ms Scott has an arguable case to an interest in the property. There may, of course, be reasons why she cannot succeed when the facts of the case are fully aired and considered by the Family Court, but for present purposes I am satisfied that she has demonstrated an arguable case to an interest in the property which should be protected by a notice under the PRA until her rights and those of Mr P R Grainger are decided.

[18]     Secondly, I am satisfied that the original interim order that the notice not lapse was not registered due to an oversight which appears to have been on the part of Ms Scott’s solicitors as (for example) in Dormer Holdings Limited v Allen.2   This is a reasonable explanation.  It is clear that throughout the proceedings Ms Scott has maintained that she has an interest in the property and in accordance with this consistent approach proceedings have been brought in the Family Court for that interest to be decided.

[19]     No evidence was presented to demonstrate any prejudice to any other party as a result of that party having relied on the register, nor for the reasons given is there any reason for any party to have formed a view that Ms Scott may not be pursuing a claim.

[20]     In these circumstances I find that an order should be made granting leave for a second notice under the PRA to be registered.

Outcome

[21]     I make an order that a notice of claim under s 43(1) of the PRA to an interest in the land within identifier CB25B/186 Canterbury Registry may be registered by the applicant, Bianca Frances Scott.

[22]     Ms Scott has succeeded on her application and is entitled to costs against the defendants on a 2B basis, with disbursements fixed by the Registrar.

[23]     There  is  a  further  application  on  the  file,  an  application  for  a  stay  of proceedings pursuant to r 15.1 of the High Court Rules and s 4(4) of the PRA.  This application was not required.  It is dismissed without costs.

[24]     In a minute dated 9 May the Court recorded that it appeared that Mr P R Grainger and Mr R A Grainger had incurred a disbursement on filing a notice of opposition to the original application, of $110.  If this disbursement was incurred, as it appears to have been, it may be offset in part-payment of the costs order now

made, unless it has in fact been paid by Ms Scott.

J G Matthews

Associate Judge

Solicitors:

Joynt Andrews Solicitors, Christchurch

P R Grainger (in person) R A Grainger (in person)