Wakenshaw v Wakenshaw - [2016] NZHC 773

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2785 [2016] NZHC 773

UNDER THE LAND TRANSFER ACT 1952

IN THE MATTER OF

an application that caveat number

BETWEEN

JANTHINA WAKENSHAW Applicant

AND

DONALD FYFE WAKENSHAW Respondent

Hearing: 22 March 2016

Appearances:

Mr Chambers for Applicant
Mr Dench for Respondent

Judgment:

22 April 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
22.04.16 at 4.00 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

WAKENSHAW v WAKENSHAW [2016] NZHC 773 [22 April 2016]

Introduction

[1] The applicant is the daughter-in-law of Mary Wakenshaw (“Mary”). The respondent is one of Mary’s sons and is the applicant’s brother-in-law. The applicant has lodged a caveat against a property in Bethell’s Beach, claiming an interest:1

As beneficiary under an implied or constructive trust and [the respondent], the registered proprietor, is the trustee.

[2] The property in question was previously owned by Mary but was gifted to the respondent in August 2014, shortly before Mary passed away. The applicant has subsequently filed an originating application for an order that the caveat not lapse.

Background

[3] The applicant was married to the late Norman Millar Wakenshaw (“Norman”), who was Mary’s son. Norman died on 11 May 2014. He and the applicant had been married for 28 years and had two daughters, now aged 14 and 16 years respectively. Mary died approximately a year after Norman, on 21 May 2015.

[4] During her lifetime Mary and her husband (the father of Norman and the respondent) went their separate ways. As part of settling their joint property, Mary acquired the interest of her former husband in a section of vacant land at Long Road, Bethells Beach in 1990 (“the property”). However, there is some dispute about the events around and after that time.

[5] The applicant alleges that Norman and the respondent assisted Mary by providing finance to her to use for the purchase of her former husband’s interest in the property. She alleges that the purchase was made on the basis of an agreed understanding that Mary was to be the legal proprietor of the property “but the
beneficial owners of the property were Donald and Norman”.2 The applicant says

that she and Norman began constructing a home on the property around 1987, where they lived with their two daughters. She says that she and Norman paid all outgoings on the property “including rates”. The respondent used to occasionally
come and stay but he would be lodged in a converted garage when he did so rather

1 Caveat against dealings with land dated 5 November 2015.
2 Affidavit of Janthina Wakenshaw dated 25 November 2015 at [11].

than staying with Norman and the applicant. Before Norman died, the applicant says, he told her that the respondent had assured him that he would transfer Norman’s one half share in the property to her and that the respondent had:3

Assured [him] that he would look after the interests…

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.

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Details

Case: [2016] NZHC 773
Decision Date: 22 April 2016

CaseChat Overview and Summary

The case of Wakenshaw v Wakenshaw [2016] NZHC 773 concerns a dispute over a property in Bethell's Beach, Auckland. Janthina Wakenshaw, the daughter-in-law of the deceased Mary Wakenshaw, lodged a caveat against the property, claiming an interest as a beneficiary under an implied or constructive trust. The respondent, Donald Fyfe Wakenshaw, one of Mary's sons and Janthina's brother-in-law, is the registered proprietor of the property. The central issue in this case is whether Janthina has a valid basis to sustain her caveat against the property. The applicant sought an order that the caveat not lapse, claiming an interest as a beneficiary under an implied or constructive trust.

The court examined the applicant's allegations of an implied or constructive trust, which arose from two main sources: contributions to the purchase price of the property and contributions to the property during the time it was owned by Mary. The court found that the applicant failed to provide adequate evidence to support her claims. There was a significant factual dispute regarding whether any contributions were made, and the applicant did not present any corroborating material to support her claims. Additionally, the applicant did not provide any documentation to support her claims of contributions to the property. The court also concluded that the contributions made by the applicant and her late husband did not manifestly exceed the benefits that they derived from the arrangement.

The court further found that even if an implied trust had existed, there was no evidence that it could bind the respondent. The respondent had agreed to allow the applicant and her daughters to continue living in the property and had chosen to gift the property to the two girls in his will. The court found that these actions did not give rise to any rights for the applicant.

Ultimately, the court dismissed the applicant's originating application for an order that the caveat should not lapse. The court expressed concern about the litigation being used to resolve a family dispute and encouraged the parties to explore mediation as a means of resolving their dispute.

Orders