West v West - [2019] NZHC 1605

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002787

[2019] NZHC 1605

BETWEEN
ALLAN JACK WEST

Plaintiff

AND

GEOFFREY ALLAN WEST

First Respondent

DAVID JOHN CAMERON WEST

Second Respondent

Hearing: 8 July 2019

Appearances:

No appearance for the Applicant

D M Kerr for First and Second Respondents

Judgment:

11 July 2019

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 11 July 2019 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:

Vodanovich Law, Auckland
Bannister & von Dadelszen, Auckland Hesketh Henry, Auckland

D M Kerr, Napier

WEST v WEST [2019] NZHC 1605 [11 July 2019]

[1] Jack West’s application for an order that two caveats not lapse was listed for hearing before me on 8 July 2019 at the direction of Gault J. The application was filed on 2 October 2016, and has been brought on for hearing after a lengthy adjournment at the request of Mr West’s sons, David West and Geoffrey West, who are the respondents in this proceeding. In a memorandum they filed on 12 April 2019, they seek orders to lapse the caveats.

[2] Mr West did not appear at the hearing. He is very elderly (close to 100 years old), frail and self-represented. On 2 May 2019 Gault J directed that if Mr West remains self-represented and is unable to appear at the hearing in person or by telephone, he needed to confirm that in his submissions and his appearance may be excused. On 22 May 2019, Mr West filed an affidavit (dated 16 May 2019) and a brief written submission dated (19 May 2019). These are in addition to the affidavit he filed on 2 November 2016 in support of the application and submissions filed on 2 November 2016 by his then lawyer, Mr Vodanovich.

[3] I am not aware of any advice to the Court from or on behalf of Mr West that he would not appear at the hearing. I take his non-appearance as tacit advice that he would like the Court to rule on his application and is content for the hearing to proceed on the basis that the Court will take account of the documents that he has filed in support of it.

[4] As directed by Gault J, the respondents have filed written submissions for the hearing. They oppose the application and seek an order that the caveats lapse on grounds that the interest claimed in the caveats does not exist.

Background

[5] Jack West owned a property located at 306 Taiapa Road, Waimauku. The property is in two titles. In November 2014 Jack transferred the property to his sons, who are both in their late 60s. It is unnecessary to cover in depth the origin of the familial dispute that led to Jack’s change of heart, his attempt to set aside the transfer,

and the litigation between father and sons. It is set out in detail in…

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 West v West

Details

AGLC: West v West [2019] NZHC 1605
Case: [2019] NZHC 1605
Decision Date: 11 July 2019

CaseChat Overview and Summary

The case of West v West involved an application by Jack West to prevent two caveats from lapsing, which were lodged on his behalf by his solicitor. Jack's sons, David and Geoffrey, opposed the application and sought an order for the caveats to lapse. The dispute arose from a property transfer agreement between Jack and his sons in 2014, which Jack later sought to challenge. The High Court had previously ruled against Jack, finding that his sons held legitimate title to the property.

The legal issues before the Court were whether Jack had a reasonably arguable case for the interest claimed in the caveats, and whether the Court should exercise its discretion to order that the caveats not lapse. The Court considered the principles applicable to such applications, including the requirement for the caveator to show an arguable case for the interest claimed, and the Court's discretion to remove a caveat even if an arguable case is established. The Court also noted that delay and prejudice are relevant factors in exercising its discretion.

The Court found that Jack's claim for an interest in the property was not arguable because the High Court had already ruled against him on the same issue. The Court held that Jack's application was an abuse of process, as he was attempting to relitigate issues that had already been determined. The Court also found that the respondents were entitled to an order that the caveats lapse, and granted them costs on a category 2B basis.

In summary, the Court disallowed Jack's application to prevent the caveats from lapsing, and ordered that the caveats lapse. The Court also granted the respondents costs of $11,485 plus disbursements. The Court noted that Jack was entitled to remain in occupation of the property under the terms of the property transfer agreement, but made no determination on whether he had an interest in the property that might support a caveat.

Orders