Trainor v Leotuki - [2020] NZHC 1574

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2536

[2020] NZHC 1574

IN THE MATTER of an application under ss 339(1)(a), 339(4) and 343 of the Property Law Act 2007

BETWEEN

RONGOPAIWAHINE LOIS TRAINOR

(formerly known as RAEWYN LOUISE TOFILAU and also known as RAEWYN TRAINOR

Plaintiff

AND

TIMOTHY JUNIOR LEOTUKI

First Defendant

STEVE TOFILAU

Second Defendant

NICOLAU ALEX TOFILAU

Third Defendant

Hearing:
24 June 2020 (and further memoranda received 26 June 2020 and

1 July 2020)

Appearances:

N W Wood for the Plaintiff

First and Second Defendants in person
No appearance by or for the Third Defendant

Judgment:

3 July 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 3 July 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

TRAINOR v LEOTUKI [2020] NZHC 1574 [3 July 2020]

[1] The plaintiff, Ms Trainor, seeks an order for sale (and associated orders) of a property at 29 Lever Place, Weymouth, Manukau.1 Ms Trainor is the registered proprietor of a one-quarter share of the property. The defendants, three of her four sons, are each also registered proprietors of a one-quarter share.

[2] The defendants did not file statements of defence and the proceeding was allocated a formal proof hearing, to take place on 24 June 2020.

[3] At the hearing, however, the first and second defendants (Timothy and Steve) appeared in person. Thus, the formal proof hearing became an application for leave to defend out of time.

Factual background

[4] Ms Trainor and her then husband, Mr Tofilau, purchased the property in 1975. In about 1983/1984, they separated and Ms Trainor moved to Australia.

[5] On 2 July 2008 Mr Tofilau died. Ms Trainor inherited the property by survivorship.

[6] On 21 July 2008 Ms Trainor and the four sons entered into an agreement for sale and purchase whereby she agreed to sell a one-quarter interest in the property to each of them for a total of $273,000, being half the market value. They each signed a deed of acknowledgement of debt acknowledging an on demand loan in respect of one-quarter of the total price, with provision for interest to be payable if demanded.2

[7] Timothy and Steve have been living in the property. The third defendant, Nicolau, lives in Melbourne.

[8] On 4 September 2017, Ms Trainor demanded repayment. No repayments were made, and proceedings were commenced in the District Court seeking repayment.

1 Identifier NA27A/657, Lot 42 Deposited Plan 70363.
2 Commonly referred to as a Marshall clause.

[9] On 27 March 2018 the fourth son, Taroi, transferred ownership of his one-quarter share back to Ms Trainor in satisfaction of his debt.

[10] On 25 June 2018 Ms Trainor’s solicitor notified the defendants that she required interest to be paid from 1 April 2018.

[11] Following service of this proceeding in November 2019, the parties attended a mediation in December 2019 and agreed terms of settlement whereby…

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 Trainor v Leotuki

Details

AGLC: Trainor v Leotuki [2020] NZHC 1574
Case: [2020] NZHC 1574
Decision Date: 3 July 2020

CaseChat Overview and Summary

In Trainor v Leotuki, the High Court of New Zealand considered an application for leave to defend out of time by two sons of the plaintiff, Ms Trainor, who sought an order for the sale of a property. The plaintiff and her then husband had purchased the property in 1975. Upon separation, the plaintiff moved to Australia, but she inherited the property upon her ex-husband's death in 2008. In 2008, the plaintiff, along with her four sons, entered into an agreement for sale and purchase, whereby each son bought a one-quarter share of the property. The plaintiff later demanded repayment of the loans, which were not paid, leading to the commencement of proceedings in the District Court. The fourth son transferred his share back to the plaintiff in satisfaction of his debt, leaving the plaintiff with a one-quarter share and the three defendants with three-quarter shares.

The primary legal issue before the court was whether the defendants had a substantial ground of defence, whether the delay in filing the defence was reasonably explained, and whether the plaintiff would suffer irreparable injury if leave to defend out of time was granted. The court held that the settlement agreement had ceased to have effect following the expiry of a condition precedent, and therefore, it did not provide a defence. The court also found that the delay in filing the defence was not reasonably explained and had caused the plaintiff unnecessary cost. However, the court considered that the plaintiff would not suffer irreparable injury if leave to defend was granted, provided that the defendants paid the plaintiff's wasted costs and the delay was minimised.

Accordingly, the court granted the defendants leave to defend on strict conditions, including the payment of the plaintiff's wasted costs, filing of a statement of defence, addressing case management matters, and consenting to applications for priority fixture, transfer of the District Court proceedings to the High Court, and/or determination of the application for sale order as a preliminary issue.

The court's decision highlights the importance of strict compliance with procedural requirements in court proceedings, as well as the need to balance the interests of all parties involved. The court's approach to granting leave to defend out of time demonstrates its willingness to ensure that justice is served while also considering the practicalities and circumstances of each case.

Orders