Van Schaik v McHenry - [2020] NZHC 3538

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-099

[2020] NZHC 3538

IN THE MATTER OF a Claim under a Constructive Trust

BETWEEN

RONALD GERARD VAN SCHAIK

Plaintiff

AND

DZIDRA KATHRYN McHENRY

First Defendant

DZIDRA KATHRYN McHENRY and GROSSMAN TRUSTEES LIMITED as

Trustees of the McHENRY FAMILY TRUST Second Defendant

Hearing: 30 November 2020

Appearances:

M Casey and M Inwood for the Plaintiff

J Bates for the First and Second Defendants

Judgment:

30 November 2020

JUDGMENT OF GRICE J

(Security for Costs)

[1] This is an application by the second defendant for security as to costs. It is opposed by the plaintiff. The security sought is in the sum of $40,000.1

[2] I take the details of the claim from the statement of claim filed on 20 December 2019.

1 This decision was delivered orally. The written version has been edited for grammar and flow, with the insertion of footnotes. The application was initially brought by both the first and second defendants, but the proceedings have been discontinued against Ms McHenry, the first defendant.

VAN SCHAIK v McHENRY [2020] NZHC 3538 [30 November 2020]

[3] Mr Van Schaik was in a relationship with Ms McHenry from about February 2009 until they separated on 28 January 2018. Initially this was in the nature of a de facto relationship. They married on 31 December 2010.

[4] During the relationship they lived and worked on a property in Stafford Street, Clive. That property is the subject of the present proceedings. Before the relationship commenced, Ms McHenry lived on the property with her two children. It was owned by Ms McHenry’s Family Trust (Trust) at the time the parties entered the relationship. It remains owned by the Trust although the trustees have changed. The property comprises 2.0557 hectares and includes a main dwelling, a cottage and a workshop area. According to the statement of claim it has an estimated value, as at 1 November 2019, of $845,000.

[5] Mr Van Schaik says he was led to believe that he would have an interest in the property. This was because he and Ms McHenry lived in it and treated it as the family home. He assumed his contributions, by way of work on the property, as well as amounts paid for items for the property (which he estimates at $30,000) should be recognised. The causes of action are equitable claims. Mr Van Schaik alleges the contributions he made were to his ultimate detriment; that he reasonably expected an interest in the property because it was treated as the joint matrimonial home; and he is entitled to an interest, or compensation, in lieu of his contributions. He seeks a declaration that a portion of the property is held on his behalf. In the alternative, he seeks a half share of the property.

[6] In an affidavit in support of the application by Ms McHenry, she says that she had consistently told Mr Van Schaik that the Trust…

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 Van Schaik v McHenry

Details

AGLC: Van Schaik v McHenry [2020] NZHC 3538
Case: [2020] NZHC 3538
Decision Date: 30 November 2020

CaseChat Overview and Summary

Van Schaik v McHenry is an application for security for costs brought by the McHenry Family Trust as the second defendant against Ronald Gerard Van Schaik, the plaintiff, in a case concerning an equitable claim for a share of a property in Clive, as well as alleged contributions made by Van Schaik to the property and a business, Stables Limited. The Trust argues that Van Schaik is unable to pay costs if the defendants are successful and that he is resident outside New Zealand. Van Schaik opposes the application. The court considered the principles governing security for costs and the relevant factors, including the strength of the case, the plaintiff's ability to pay costs, and the plaintiff's residence outside New Zealand. The court found that the plaintiff's case was not strong, and his financial position was uncertain, dependent on the outcome of other proceedings. The court ordered that Van Schaik pay security for costs in the total sum of $30,000 in two tranches, the first by 30 April 2021, and the second at the close of pleadings. The court also noted that costs on this matter would follow the event on a 1A basis.

Orders