Smith v Endean - [2022] NZHC 1246

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002210

[2022] NZHC 1246

BETWEEN
JOCELYN LOUIS SMITH

Applicant

AND

WILLIAM ARTHUR ENDEAN as executor of the estate of George Clifford Smith

Respondent

Hearing: 8 March 2022

Appearances:

P Amaranathan for the Applicnat W Andrews for the Respondent

Judgment:

9 June 2022

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 9 June 2022 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors: Dawsons, Auckland
Rice Craig, Auckland W Andrews, Auckland

SMITH v ENDEAN [2022] NZHC 1246 [9 June 2022]

Introduction

[1] Jocelyn Smith and her late husband, George Smith, lived in their family home at The Glebe, Cockle Bay, Auckland for 45 years.

[2] Mrs Smith and the executor of Mr Smith’s estate, William Endean, each own a half share of the home as tenants in common in equal shares. In his will, Mr Smith specified that his residual estate, which includes his half share in the Glebe property, is to be transferred into a separate trust he established for the ultimate benefit of his grandchildren.

[3] As the time for any claim against Mr Smith’s estate has passed, Mr Endean intends to sell the house and transfer Mr Smith’s half share of the net proceeds to his trust, according to Mr Smith’s will. Mrs Smith does not agree to the sale, so Mr Endean intends to apply to the Court for an order under the Property Law Act 2007.

[4] Mrs Smith objects to the sale of the house because she wishes to continue to live there. She claims to have a life interest in the property, either as a discretionary beneficiary of Mr Smith’s trust, or under a constructive trust.

[5] Mrs Smith lodged a caveat against the title of the property to protect her interests. Mr Endean applied for the caveat to lapse. Mrs Smith now applies to the Court for an order that the caveat not lapse. Mr Endean opposes the application.

Factual background

Mr and Mrs Smith's relationship

[6] Mr and Mrs Smith began living together in a de facto relationship in 1959. They were married from 1981 until Mr Smith died on 9 August 2019. Mrs Smith is 83 years old. Mr Smith was 90 when he died.

[7] When Mr Smith and Mrs Smith met, they had no significant assets. They initially cleaned offices together. They saved their money and bought a business in 1965 — a meat transport company. They both worked full-time in the business.

[8] They bought a house in Mt Wellington together in 1965. Then, in 1976, they bought the Glebe property as their family home. They owned the property jointly. They had five children and raised them there.

[9] Mrs Smith says that she and Mr Smith each drew a roughly equal income from their business.1 She says that her share was deposited into a joint bank account and…

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 Smith v Endean

Details

AGLC: Smith v Endean [2022] NZHC 1246
Case: [2022] NZHC 1246
Decision Date: 9 June 2022

CaseChat Overview and Summary

In this case, Jocelyn Smith sought to prevent the sale of her late husband's half share in their jointly owned family home by lodging a caveat against the title. The executor of George Smith's estate, William Endean, sought an order for the caveat to lapse. The primary issue was whether Mrs Smith's claim to a constructive trust in Mr Smith's half share of the property was precluded by the Property (Relationships) Act, and if not, whether she had an arguable interest in the property arising out of a constructive trust.

The Court found that the caveat based on Mrs Smith's interest in the property under a constructive trust cannot be sustained as the Glebe property was relationship property and any claim in respect of it should be dealt with under the Act rather than equitable principles. Even if Mrs Smith was not precluded from advancing a claim to a constructive trust by the Act, the Court found that she did not have an arguable interest in Mr Smith's half share of the property arising out of a constructive trust. The Court found that Mrs Smith did not have a credible case that she expected Mr Smith to yield an interest in his share of the property or that if she did, such an expectation was reasonable.

The Court ordered that Mrs Smith's application that the caveat not lapse be dismissed. The Court also indicated that as Mr Endean was the successful party, he was entitled to costs, and that costs on a 2B basis were suitable, plus reasonable disbursements. If the parties were unable to agree on a costs order, they could file submissions of not more than three pages, and the Court would decide costs on the papers.

Orders