Wea v McQuoid

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000327

[2022] NZHC 1205

UNDER

the Land Transfer Act 2017

BETWEEN

RAYMOND WEA

Applicant

AND

JULIE KAREN McQUOID

Respondent

Hearing:

12 May 2022

Appearances:

C F Godinet for the Applicant

No appearance by or for the Respondent

Judgment:

27 May 2022

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 27 May 2022 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Duggan & Murphy, Auckland C F L Godinet, Auckland

WEA v McQUOID [2022] NZHC 1205 [27 May 2022]

[1]    Raymond Wea applies for an order that caveat 12382292.1 lodged against Certificate  of  Title  NA89D/440  not  lapse.  This  follows  an   application   by Julie McQuoid to the District Land registrar to lapse the caveat. Ms McQuoid has not filed any documents in opposition to the application.

Facts

[2]    Mr Wea lodged the caveat on 22 February 2022. He claims to have an interest in the land that is the subject of the caveat pursuant to a cestui que trust by which he is beneficiary and Julie McQuoid, as registered proprietor of a two-thirds share of the land, is trustee.

[3]    Mr Wea has sworn an affidavit dated 16 March 2022 in support of his application. In that affidavit he deposes that in around June 2007 he and his partner, Karen Brown (now deceased), Ms McQuoid, and David Brown (his brother), arranged for he and his partner to buy a property at Woodglen Road, Titirangi. Mr Wea had recently been adjudicated bankrupt and was unable to obtain finance for the purchase himself. He was discharged from bankruptcy on 18 April 2010.

[4]    Mr Wea deposes that it was agreed that Mr Brown and Ms McQuoid would become registered proprietors of the property, with Mr Brown to own a one-third share for his own benefit and Ms McQuoid to own a two-thirds share as trustee for the benefit of Mr Wea and Ms Brown. There was no deposit payable, and the purchase was funded entirely from loans from Wizard Home Loans and Clegg & Co, now known respectively as Pepper New Zealand (Custodians) Limited and Prime Debt Collections Limited.

[5]    The arrangement is recorded in a “Property ownership agreement and deed of trust” attached to the affidavit of Mr Wea. That document records that:

(a)Mr Wea and Ms Brown entered into an agreement to purchase the property at Woodglen Road but were unable to raise the necessary finance due to Mr Wea’s bankruptcy.

(b)Mr Brown and Ms McQuoid agreed to complete the purchase on the following basis:

(i)Mr Brown would take ownership of a one-third share of the property for his own benefit, and Ms McQuoid would take ownership of  a two-third share as trustee for the benefit of   Mr Wea and Ms Brown;

(ii)Mr Brown would be responsible for one-third of the outgoings, and Mr Wea and Ms Brown would be responsible for…