Treadgold v Treadgold - [2013] NZHC 2639

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001292 [2013] NZHC 2639

UNDER THE Land Transfer Act 1952

IN THE MATTER

of an Application to sustain Caveat 9210814.1

BETWEEN

GARY REX TREADGOLD

Applicant

AND

GRACE AUDREY TREADGOLD

Respondent

Hearing:

7 October 2013

Appearances:

G P Tyrrell for Applicant

M J Wallace for Respondent

Judgment:

10 October 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to application for order that caveat not lapse

Introduction

[1] The applicant (Gary) caveated the title to a property at Akaroa. The registered proprietors of the Akaroa property are Gary’s father (Rex) and Rex’s second wife (Grace).

[2] Rex and his first wife (Ivy) are the parents of Gary and Mark Treadgold. When Ivy died in 1971 she left her half interest in the Auckland property she owned with Rex on will trust. Rex was given a life interest in Ivy’s half share of the property. The remainder was vested in Gary and Mark.

TREADGOLD v TREADGOLD [2013] NZHC 2639 [10 October 2013]

[3] The family in 1976 entered into a deed of family arrangement which allowed Rex as trustee to sell the Auckland property and invest the proceeds elsewhere on the same trusts.

Key issue

[4] The key factual issue in this case is whether the proceeds of sale of the Auckland property can be traced through a Christchurch property into the Akaroa property. If they arguably can be, then Gary and Mark have a beneficial interest in the Akaroa property. A second issue relates to the proper construction and effect of a deed by which Rex has recently retired as trustee to be replaced by Gary and Mark. The final matter for the Court’s determination is whether the Court should exercise its discretion to order removal of the caveat on terms.

Application that caveat not lapse – the principles

[5] The principles which I apply in relation to Gary’s application are these:

[a]The burden of establishing that the applicant has a reasonably arguable case for the interest claimed is upon the caveator;

[b]The caveator must show an entitlement to, or beneficial interest in, the estate referred to in the caveat by virtue of an unregistered agreement or an instrument or transmission, or of any trust expressed or implied: s 137 Land Transfer Act 1952;

[c]The summary procedure involved in an application of this nature is wholly unsuitable for the determination of disputed questions of fact
– an order for removal of the caveat will not be made unless it is clear that the caveat cannot be maintained either because there was no valid ground for lodging it or that such valid ground as then existed no longer does so;

[d]When an applicant has discharged the burden upon the applicant, there remains a discretion as to whether to remove the caveat, which will be exercised cautiously;

[e] The Court has jurisdiction to impose conditions when making orders.

Chronology

[6] The sequence of events disclosed on the affidavit evidence is:

Until11 August 1971 – Rex 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 Treadgold v Treadgold

Details

AGLC: Treadgold v Treadgold [2013] NZHC 2639
Case: [2013] NZHC 2639
Decision Date: 10 October 2013

CaseChat Overview and Summary

The case of Treadgold v Treadgold, heard by Associate Judge Osborne, involves a dispute over a property located in Akaroa. The applicant, Gary Rex Treadgold, caveated the property title to prevent its sale, claiming a beneficial interest in the property. The respondents, Grace Audrey Treadgold and Rex Treadgold, sought to remove the caveat and proceed with the sale of the property. The primary issue was whether Gary and his brother Mark have a beneficial interest in the Akaroa property. The court found that it was probable that proceeds from the sale of an Auckland property, which originally belonged to their late mother, were used to acquire the Akaroa property. The court held that Gary and Mark have a beneficial interest in the property, which justifies the caveat. However, the court also considered whether it should exercise its discretion to remove the caveat on terms. The court found that Grace's desire to resolve her relationship property issues with Rex was not clearly compromised by the existence of the caveat. Therefore, the court decided to sustain the caveat on conditions. The conditions require Gary and Mark to decide whether they will challenge the option agreement allowing Hugh Shearer to repurchase the property. If they choose not to challenge the option, the respondents may request the court to remove the caveat on condition that the proceeds of the sale are held in a solicitor's trust account pending resolution of the respective interests in the property. Costs are reserved, and the parties are encouraged to negotiate a settlement to avoid further litigation.

Orders