Stirrup v Rahurahu - [2025] NZHC 269

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2024-463-73

[2025] NZHC 269

UNDER the Land Transfer Act 2017, section 143(2)(b)

IN THE MATTER OF

an application to sustain a caveat

BETWEEN

HELENA STIRRUP

Applicant

AND

LEONIE RAHURAHU

Respondent

Hearing: 4 December 2024

Appearances:

D B Rendall for the Applicant Ian Harvey for the Respondent

Judgment:

25 February 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for an order that caveat not lapse]

This judgment was delivered by me on 25 February 2025 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
O’Sullivan Clemens (David B Rendall), Rotorua, for the Applicant Lance & Lawson (Ian Harvey), Rotorua, for the Respondent

STIRRUP v RAHURAHU [2025] NZHC 269 [25 February 2025]

TABLE OF CONTENTS

Paragraph

Introduction [1]

Background [2]

Ms Stirrup’s application for order that caveat not lapse [10]

Ms Rahurahu’s opposition [11]

Legal principles [12]

Analysis [18]

Does Ms Stirrup have a caveatable interest in the Property? [20]

Ms Rahurahu’s submissions [25]

Caveat defective under the Regulations [26] No interest in the Property passed into the residuary estate [33] A residuary legatee has only a right to a share of the residue [34]

Result [41]

Exercise of the Court’s discretion [43]

Orders [50]

Introduction

[1] Ms Helena Stirrup (Ms Stirrup) applies for an order sustaining caveat number 12986523.1 (the caveat) lodged by her against 6 Dawson Drive, Ngongotaha, Rotorua with the record of title SA1001/133 (the Property). The application is opposed by the respondent, Ms Leonie Rahurahu (Ms Rahurahu).

Background

[2] Mr Hemi Colin Scott (Mr Scott) and Mrs Mary Anne Scott (Ms Scott) are the parents of Ms Stirrup and Ms Rahurahu.

[3]On 17 July 1986, the Property was transferred to Ms Scott’s sole name.

[4] On 13 August 1996, Ms Scott made a will (the Will) under which she appointed her son, Mr Jackie Colin Scott, and Ms Rahurahu as her executors. Under the Will, Ms Scott gave Mr Scott the conditional “use, occupation and enjoyment” of the Property until his death or remarriage. Upon Mr Scott’s death or remarriage the Property was bequeathed to Ms Rahurahu under the Will.

[5] Ms Scott died on 11 November 1997. On 11 December 1997, Mr Scott and Ms Rahurahu were granted probate of the Will and the title of the Property was transferred to Mr Scott and Ms Rahurahu as executors.

[6] Mr Scott occupied the Property until 2006. He remarried on 18 July 2008. On 24 June 2016, the Property was transferred to Ms Rahurahu’s sole name. Mr Scott died on 4 February 2024.

[7] On 17 April 2024, Ms Stirrup placed a caveat on the Property on the basis that she is a residuary beneficiary under the Will. Ms Stirrup claims that under the Will, only one-half share of the Property was bequeathed to Ms Rahurahu, and that the remaining…

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 Stirrup v Rahurahu

Details

AGLC: Stirrup v Rahurahu [2025] NZHC 269
Case: [2025] NZHC 269
Decision Date: 25 February 2025

CaseChat Overview and Summary

In the case of Stirrup v Rahurahu, the applicant, Ms Stirrup, sought an order sustaining her caveat lodged against the property at 6 Dawson Drive, Ngongotaha, Rotorua. The respondent, Ms Rahurahu, opposed the application on various grounds, including the argument that Ms Stirrup's caveat was defective and that no interest in the property passed into the residuary estate of Ms Scott, thereby denying Ms Stirrup any estate or interest in the property. The court considered the legal principles governing the determination of applications to sustain caveats, including the onus on the caveator to demonstrate a reasonably arguable case to support the claimed interest. The court also examined the submissions of both parties, with a particular focus on whether Ms Stirrup had a caveatable interest in the property and whether the court should exercise its discretion to remove the caveat. Ultimately, the court determined that it was reasonably arguable that Ms Stirrup had a proprietary interest in the property sufficient to sustain the caveat. The court exercised its discretion not to remove the caveat at that point but invited the parties to confer and reach an agreement on a proposal that could be incorporated in a consent order. The court made an order that the caveat was not to lapse, and as Ms Stirrup was the successful party, costs followed the event.

Orders