Some months before her death in May 2015, Mary Wakenshaw gifted a property she owned at Bethell’s Beach (the Property) to her son, Donald Wakenshaw. Following Mary’s death, her daughter-in-law Janthina Wakenshaw (Jan) lodged a caveat against the title to the Property. Jan is the widow of Mary’s other son, Norman Wakenshaw. The caveat records that Jan claims an interest:
As beneficiary under an implied or constructive trust and [Donald Wakenshaw], the registered proprietor, is the trustee.
Jan subsequently filed an originating application for an order that her caveat not lapse.[1] Associate Judge Doogue dismissed her application.[2] Jan now appeals that decision. In her notice of appeal she alleges a number of specific errors on the part of the Judge. At heart, however, the issue on appeal is simply whether the Judge erred in concluding that Jan had not established a reasonably arguable case that she has a caveatable interest in the Property.

Factual background

[1]Pursuant to s 145A of the Land Transfer Act 1952.

[2]Wakenshaw v Wakenshaw [2016] NZHC 773 at [54].

Mary Wakenshaw had three children: Donald, Norman and Delwyn. Donald has no children. Norman and Jan have two daughters, both of whom are now teenagers. Delwyn has one son.
Mary and her husband acquired the Property in 1972. Their marriage ended in 1981. A number of years later, in 1990, the Property was transferred into Mary’s sole name. Donald’s evidence is that no money changed hands. Rather, he says that his father received a property of similar value in Whangamata in exchange. Jan’s evidence, on the other hand, is that Donald and Norman provided financial assistance to enable Mary to acquire her husband’s interest in the Property. She further says that, in consideration for Donald and Norman’s assistance to purchase their father’s half share in the Property, Mary acknowledged that she would hold the entire Property on trust for Donald and Norman. Donald denies knowledge of any such trust and says that it was always clear that the Property was his mother’s, to do with as she wished.
The parties differ as to how and when the Property was developed. Donald’s evidence is that from about 1982 onwards he and Norman started work on the Property. First, they put in a driveway and drainage. During 1983 they built a garage and placed a pre-fabricated shed on the Property.
In 1985 Norman married Jan. Both sons were living with Mary in the family home in Glendene at the time,…

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 Wakenshaw v Wakenshaw

Details

AGLC: Wakenshaw v Wakenshaw [2017] NZCA 252
Case: [2017] NZCA 252
Decision Date: 14 June 2017 at 3.00 pm

CaseChat Overview and Summary

In the case of Wakenshaw v Wakenshaw, the Court of Appeal of New Zealand considered an appeal brought by Janthina Wakenshaw against a decision of the High Court to dismiss her originating application for an order that her caveat against the title of a property not lapse. Jan is the widow of Norman Wakenshaw, the son of the deceased, Mary Wakenshaw. Jan claims an interest in the property under an implied or constructive trust, with Donald Wakenshaw, the current registered proprietor, as the trustee. The central issue on appeal was whether the High Court Judge had erred in concluding that Jan had not established a reasonably arguable case that she has a caveatable interest in the property.

The court found that Jan's claims were not reasonably arguable, as her evidence was vague and lacked detail, and she had not provided sufficient supporting documentation. The court further found that Jan had not discharged the burden on her of satisfying the court that it was reasonably arguable that she and Mary both expected that Jan would share in the Property as a result of Jan's contributions to the acquisition, preservation, or enhancement of it. The court also concluded that there was no evidence to suggest that Donald received the Property with notice that it was subject to a constructive trust in Jan's favour.

Ultimately, the Court of Appeal dismissed the appeal and ordered Jan to pay costs to Donald for a standard appeal on a band A basis and usual disbursements.

Orders