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Stills v McCormack

Stills v McCormack

Case [2023] NZHC 2224 17 August 2023

Equitable Estoppel

Unconscionable Conduct

Specific Performance

Property Law

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-421

[2023] NZHC 2224

UNDER the Land Transfer Act 2017

IN THE MATTER

of an application to sustain caveat 12340440.1

BETWEEN

ANDREW EDWARD STILLS

Applicant

AND

ROBERT JAMES LOUIS McCORMACK and ELIZABETH ROBYN McCORMACK

Respondents

Hearing: 19 June 2023

Appearances:

M P Davis and M K Thomas for Applicant

H A Evans and G C Collinson for Respondents

Judgment:

17 August 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 17 August 2023 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

STILLS v McCORMACK [2023] NZHC 2224 [17 August 2023]

Introduction

[1] Church Property Trustees (CPT) is one of three bodies that make up the Anglican Diocese of Christchurch1 and is presently the registered proprietor of 36D Lukes Road, Little Akaloa (Lot 2). Lot 2 is subject to a registered lease in favour of the applicant, Andrew Stills (Mr Stills), and his two brothers.2

[2] CPT has recently sold its fee simple estate in Lot 2 to the respondents, Robert McCormack and Elizabeth McCormack (the McCormacks). The McCormacks have settled their purchase of Lot 2, but Mr Stills has lodged a caveat to prevent the transfer of title to them.

[3] In response to an application made by the McCormacks to the Registrar- General of Land that the caveat lapse, Mr Stills applies under s 143 of the Land Transfer Act 2017 (LTA) for an order to sustain it.

[4]The estate or interest in Lot 2 claimed by Mr Stills in his caveat is as follows:

Pursuant to a cestui que trust, whereby the registered proprietor The Church Property Trustees holding in trust for the Akaroa Anglican Parish, the fee simple land – only Lot 2 DP20032 together with the rights of way to it over Lot 14 DP20032 and Lot 1 DP20032, are the trustee, and the caveator Andrew Edward Stills is one of the beneficiaries pursuant to an equitable estate in the land, including by right-of-renewal and current 46-year leaseholder and improver of the land, and including a promised and/or implied first right of purchase at fair and equitable value.

[5] Despite the wording of the caveat, Mr Stills now relies upon only one ground to sustain it. He says he has an equitable interest in Lot 2 as a beneficiary under an institutional constructive trust.3 However, he is not claiming an ownership interest in Lot 2, rather his interest is said to be a first right to be offered Lot 2 by way of private sale for a fair price, founded upon an assertion that such a right was granted to Mr Stills’s mother (Mrs Stills), a former lessee of Lot 2.

1 The existence of CPT as a body corporate is recognised by the Anglican (Diocese of Christchurch) Church Property Trust Act 2003 which also sets out its functions and powers. CPT holds and administers the property 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 Stills v McCormack

Details

AGLC: Stills v McCormack [2023] NZHC 2224
Case: [2023] NZHC 2224
Decision Date: 17 August 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Paulsen delivered a judgment in the case of Stills v McCormack, concerning an application to sustain a caveat. The applicant, Andrew Stills, sought to maintain a caveat on Lot 2, a property in Little Akaloa, which was sold by the Church Property Trustees (CPT) to the McCormacks. Mr Stills argued that he had an equitable interest in Lot 2, either as a beneficiary under a constructive trust or as the holder of a right of first refusal. The court considered the arguments presented by both parties and ultimately dismissed Mr Stills' application to sustain the caveat.

The court found that Mr Stills had not established an arguable case for an interest in Lot 2 to support his caveat. While the principles in Lankow v Rose were relied upon by Mr Stills, the court held that his case failed to draw the fundamental distinction between obligations arising under a contract and those arising by virtue of a trust. The court also found that the evidence presented by Mr Stills did not establish an arguable case for the grant of a right of first refusal to Mrs Stills, and any such right would be unenforceable due to non-compliance with the Property Law Act 2007. As a result, Mr Stills' application was dismissed, and the caveat was ordered to be lapsed by the Registrar. Associate Judge Paulsen reserved the decision on costs, allowing either party to apply for costs within 21 days of the judgment date.

Orders