Weale v Lovell - [2024] NZHC 3831

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2023-419-000120

[2024] NZHC 3831

UNDER the High Court Rules 2016, Part 18

IN THE MATTER OF

a constructive trust or resulting trust

BETWEEN

CHERI LOUSE MARY WEALE

Plaintiff

AND

ROBIN LOVELL

Defendant

Hearing: 19 November 2024

Appearances:

P A Depledge for the Plaintiff No appearance for the Defendant

Judgment:

13 December 2024

JUDGMENT OF TAHANA J

This judgment was delivered by me on 13 December 2024 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Cylde Law, Hamilton
Riverbank Chambers, Hamilton

WEALE v LOVELL [2024] NZHC 3831 [13 December 2024]

Application for orders for sale of property

[1] Prior to her passing, Ms Cheri Weale filed these proceedings seeking orders for the sale of an Otorohanga property (the property) held in the name of Mr Lovell. Ms Weale claimed that she paid money to Mr Lovell towards the purchase price of the property, and they agreed it would be owned equally. Ms Weale’s estate is now pursuing the claim.

[2] Mr Lovell has not filed a statement of defence. On 5 June 2024, Associate Judge Taylor ordered that the claim be listed for a formal proof hearing.1

[3] The key issue on appeal is whether Mr Lovell holds the property on trust for the benefit of Ms Weale and if so, what relief should be granted to Ms Weale’s estate?

[4]Before considering this issue, I set out the relevant background.

Background

[5] In May 2014, Ms Weale and Mr Lovell met at a rest home where they both worked. Ms Weale had recently immigrated from England.

Purchase of the property

[6] Ms Weale filed an affidavit in support of her claim. She deposed that Mr Lovell purchased the property on 2 April 2015. Ms Weale’s affidavit annexes data from “homes.co.nz” recording that the last market sale for the property was on 18 February 2015 for $175,000.

[7] Ms Weale says that she transferred $32,000 to Mr Lovell to be used for the deposit for the purchase of the property. Bank statements annexed to Ms Weale’s affidavit indicate that:

(a)on 24 February 2015, Ms Weale transferred $10,000 to Mr Lovell.

1 Weale v Lovell HC Hamilton CIV-2023-419-120, 5 June 2024.

(b)on 25 February 2015, she transferred another $10,000 to Mr Lovell.

(c)on 26 February 2015, she transferred another $10,000 to Mr Lovell.

(d)on 27 February 2015, she transferred $2,000 from her account. The statement does not record to whom the funds were paid.

[8] The certificate of title for the property records a mortgage to ANZ Bank New Zealand Ltd (ANZ) that was registered on 2 April 2015.

[9]Ms Weale deposes that while she was living at the property, she paid Mr Lovell

$200 per week and sometimes $450 per week. The bank statements annexed to Ms Weale’s affidavit record that payments with the particulars “auto payment rent” were paid to Mr Lovell as follows:

(a)Ms Weale…

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 Weale v Lovell

Details

AGLC: Weale v Lovell [2024] NZHC 3831
Case: [2024] NZHC 3831
Decision Date: 13 December 2024

CaseChat Overview and Summary

Cheri Weale, through her estate, filed proceedings seeking orders for the sale of an Otorohanga property held in the name of Robin Lovell. Ms Weale claimed that she paid money to Mr Lovell towards the purchase price of the property and they agreed it would be owned equally. Mr Lovell has not filed a statement of defence. The court was required to decide whether Mr Lovell holds the property on trust for the benefit of Ms Weale and if so, what relief should be granted to Ms Weale’s estate.

The court considered the legal principles of formal proof, constructive trusts, and resulting trusts. It examined the evidence presented by Ms Weale, including her affidavit and annexes, as well as the email correspondence between Mr Depledge and Mr Lovell. The court noted discrepancies in Ms Weale’s evidence and Mr Lovell’s assertions that he had repaid Ms Weale and had paid for her and her son to go to the United Kingdom. The court found that Ms Weale advanced funds to Mr Lovell after he purchased the property and that she recorded the payments to Mr Lovell in 2019 to 2021 as “rent”. This is consistent with Mr Lovell’s assertion that she was a tenant and not an owner of the property. The court also found that there are credibility issues which count against determining that the monies were advanced to purchase the property.

The court concluded that it was not satisfied that the evidence established a trust (whether resulting or constructive) in favour of Ms Weale. It dismissed the claim.

Orders