Selak v Smith - [2019] NZHC 1487

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-418-11

[2019] NZHC 1487

UNDER the Land Transfer Act 2017 and the Property (Relationships) Act 1976

I THE MATTER OF

an application under s 143 of the Land Transfer Act 2017

BETWEEN

JULIE ANNE SELAK

Applicant

AND

GAVIN WAYNE SMITH

Respondent

Hearing: 25 June 2019 at 10:00am

Appearances:

W Andrews for the Applicant

J L Thomas for the Respondent

Judgment:

25 June 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Vodanovich Law, Kumeu, Auckland, for the Applicant Schnauer & Co, Milford, Auckland, for the Respondent

Copy for:
Wendy Andrews, Barrister, Auckland, for the Applicant

SELAK v SMITH [2019] NZHC 1487 [25 June 2019]

[1] Julie Anne Selak applies to sustain a notice of claim under s 42 of the Property (Relationships) Act 1976 lodged against the land in identifier NL2/216 in the Nelson land registry. The property is in Romilly Street, Westport. The respondent, Gavin Wayne Smith, is the registered proprietor of the property. There is an old house on the property, where a backpacker’s hostel is run. The proceeding was originally filed in the Greymouth registry but was transferred to the Auckland registry by consent of both parties. Ms Selak says that she was in a de facto relationship with Mr Smith; she has a claim under of the Property (Relationships) Act 1976; and the property at Romilly Street was the family home. Alternatively, she made qualifying contributions to the property, if it is separate property.

[2] The application was started on 28 March 2019 in response to a notice issued by the Registrar-General under s 143(1)(b) of the Land Transfer Act 2017 to lapse the notice of claim. The application says that it is made under the Land Transfer Act 1952. But that Act was repealed by the Land Transfer Act 2017 which came into force in November 2018. I am dealing with this case under the 2017 Act. Edwards J made an interim order by consent that the notice of claim not lapse pending further order of the court.

[3] Both counsel assumed that the test for sustaining a caveat should also apply to applications under s 42 of the Property (Relationships) Act to sustain a notice of claim. That is not necessarily the case. In Re Country Land Ltd: Bennett v Blackley I outlined that in some cases the courts have not applied the caveat test by analogy but have instead followed a “reasonable requirements” approach.1 The difference essentially comes down to the court’s exercise of the discretion once the person lodging the notice of claim has established an arguable case for their claim to an interest in the property under the Property (Relationships) Act. In caveat cases, if the caveator shows an arguable case for an actual existing interest in the land, the court is cautious in exercising any discretion to remove the caveat. That can be seen in decisions such as

1

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 Selak v Smith

Details

AGLC: Selak v Smith [2019] NZHC 1487
Case: [2019] NZHC 1487
Decision Date: 25 June 2019

CaseChat Overview and Summary

Julie Anne Selak applied to sustain a notice of claim under s 42 of the Property (Relationships) Act 1976 lodged against the land in identifier NL2/216 in the Nelson land registry. The property in Romilly Street, Westport, is owned by Gavin Wayne Smith. The property is used as a backpacker's hostel. The court was required to determine whether Ms Selak had established an arguable case for a claim under the Property (Relationships) Act 1976. This involved examining whether there was a de facto relationship between Ms Selak and Mr Smith, and whether Ms Selak made a substantial contribution to the relationship. The court considered the evidence of the relationship between the parties and the contributions made by Ms Selak. The court concluded that while there was evidence of a de facto relationship between the parties, the total period of cohabitation was less than three years, which is the threshold for a substantial contribution under the Property (Relationships) Act 1976. Additionally, the court found that Ms Selak had been paid for her work in the hostel, which prevented a claim for serious injustice from arising. The court directed that the notice of claim be removed from the land in identifier NL2/216. Mr Smith is entitled to costs under category 2. The parties are to agree on the costs or file memoranda if they cannot agree.

Orders