West v West
[2019] NZHC 1605
•11 July 2019
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 the judgment of Downs J. It is sufficient to note that:
(a)On 26 November 2014, Jack entered into a sale and purchase agreement transferring title to the property to his two sons. They did not pay for the property. The consideration was Jack’s “natural love and affection” for his sons.1 The agreement provides that Jack is entitled to remain in occupation of the property “for as long as he wishes”; and David and Geoffrey must assume various financial obligations towards Jack, Jack’s estate, and other family members.
(b)Relations between Jack and his two sons deteriorated in the years following this agreement. There are numerous examples of this, including: Geoffrey arranging for Police to visit the property after he became concerned about materials Jack was accessing on his computer; Jack seeking to remove David as the owner of the property; and Geoffrey’s lawyers seeking repayment from Jack of a $100,000 loan.
(c)Jack then engaged a solicitor, Mr Luke Kemp, in 2015. Mr Kemp revoked Geoffrey’s enduring power of attorney, and later registered the caveats in Jack’s name on 2 June 2016.
(d)Through a second lawyer, Mr Vodanovich, Jack started two proceedings. In the first, he sought an order that the caveats not lapse. It was filed on 2 November 2016, and an interim order was made on 8 November 2016. The matter was adjourned pending progress in the second substantive proceeding. In this second proceeding, Jack claimed that the transfer was an unconscionable bargain, the result of undue influence, and the result of negligent legal advice. He also claimed his sons breached their fiduciary duties.
1 See West v West [2017] NZHC 3110 at [10].
[6] In the judgment released on 13 December 2017, Downs J dismissed Jack’s substantive claims.2 He ultimately found Jack’s claims to be “superficial only”.3 While the agreement may have looked, on its face, to amount to an unconscionable bargain, Downs J held that Jack was not under disability or his sons’ influence – he was not taken advantage of. As such, Geoffrey and David have legitimate title to the property.
[7] Jack appealed Downs J’s decision to the Court of Appeal and was granted leave to appeal out of time. A hearing was set down for a hearing on 19 November 2018. However, the appeal was deemed abandoned on 19 December 2018.
[8] In the meantime, Jack made several applications for discovery against his sons and their lawyer. Edwards J dismissed the application on the basis the Court was functus officio and unable to take any further action in relation to that appeal.4 Jack appealed Edwards J’s decision, but the Court of Appeal dismissed his appeal on 19 June 2019.5 He also applied to stay Downs J’s decision, asserting trial error. Downs J dismissed the application.6
The caveats
[9] Jack’s application is made under s 145A of the Land Transfer Act 1952 for an order that the caveats not lapse.7
[10]The claimed interest is described in the caveats as follows:
A claim by way of an implied trust or as to a constructive trust by Allan Jack West as to a beneficial interest in the land contained in titles NA 21D/62 and in NA 21D/63 at 306 Taiapa Road against David John Cameron West and Geoffrey Allan West as Trustees being the registered proprietors pursuant to an agreement dated 26 November 2014.
2 West v West [2017] NZHC 3110.
3 At [109].
4 West v West [2018] NZHC 2723.
5 West v West [2019] NZCA 225.
6 West v West [2018] NZHC 2787.
7 The application was made under the Land Transfer Act 1952 and under the transitional provisions of the Land Transfer Act 2017 it is to be determined under the former.
[11] A person who lodges a caveat claiming an estate or interest in land may (subject to strict requirements) apply to the Court for an order that a caveat not lapse under s 145A of the Land Transfer Act 1952. It is well established that the principles that apply to applications under s 145A are the same as those that apply to applications made pursuant to s 143.8
[12] The Act provides no guidance as to the circumstances in which the Court may make an order that a caveat be removed. But the principles are well established:
(a)The onus under s 145 of the Land Transfer Act 1952 lies on the caveator to show that they have a reasonably arguable case for the interest claimed. This requires the caveator to show that they are entitled to, or are beneficially interested in, the estate referred to in the caveat by virtue of an unregistered agreement, an instrument, transmission or of any trust expressed or implied.
(b)The caveat, being a creature of statute, may be lodged only by a person upon whom a right to lodge it has been conferred by statute. It is not enough to show that the lodging and continued existence of the caveat would be in some way advantageous to the caveator.
(c)If it is patently clear that there was no valid ground for lodging a caveat, or that the interest which in the first place justified the lodging of the caveat no longer exists, such a caveat should be removed.9
(d)Delay is a relevant factor to be weighed in the exercise of the Court’s wide discretion under s 145. Delay is more important where there is specific prejudice. What is required is a consideration of all the circumstances.
8 Elizabeth Toomey “New Zealand Land Law” (3rd ed, Thomson Reuters, Wellington) at 381; Raiser Developments LTd v Trefoil Properties LTd [2008] NZCA 73.
9 Sims v Lowe [1988] 1 NZLR 656 (CA) at 659-660.
(e)Even if the caveator establishes an arguable case for the interest in the land claimed, the Court retains a discretion to make an order removing the caveat although it will be exercised cautiously. The Court will consider whether the balance of convenience supports leaving the caveat in place.
[13] Jack’s claimed interest relies on his claim that the agreement to transfer the title to the property was an unconscionable and unenforceable contract, and that his sons hold the property on a constructive trust for him.
[14] Jack is aware that claim has been determined in a final judgment by this Court. He appealed the judgment, but the appeal was abandoned and he has exhausted or forgone all of his avenues to challenge that judgement. The judgment therefore stands unchallenged. In his submissions in support of his caveat application Jack emphasises his belief that the decisions of Downs J are wrong and he also attacks the judgement of Edwards J. He makes various allegations of corruption, discrimination, and hate speech. Mr Vodanovich’s submissions repeat the arguments heard by Downs J, mainly that the agreement to transfer title was an unconscionable and unenforceable contract, and that the respondents hold the property on a constructive trust for Jack.
[15] The core problem with Jack’s arguments is that they attempt to relitigate matters already determined under the guise of an application to sustain a caveat. It is understandable that Jack takes issue with the proceedings in the High Court and the Court of Appeal – he lost. However, this application in this Court is not the correct way to challenge those decisions. The High Court and Senior Court Rules provide clear pathways for plaintiffs to challenge decisions that they consider incorrect in the law. Jack has taken those proceedings as far as he can.
[16] The sole question is whether there is an arguable case that Jack has a caveatable interest. Downs J upheld the legality of the transfer of the property in 2014. This means when Jack transferred title to his sons and this was noted on the register, he lost his interest in the property. Jack provides no new arguments to demonstrate he holds the interest claimed in the caveat. Downs J’s judgment is fatal to Jack’s claim, and cannot be relitigated here.
[17] Even if Jack could identify new grounds to challenge the legitimacy of the transfer in 2014, these arguments are barred on the basis that it is an abuse of process for a plaintiff to commence a proceeding in which it seeks to rely on issues or facts which could and ought to have been raised in a previous proceeding. Jack has already tried to challenge the legitimacy of the respondents’ title to the property. That several judgments have been issued against him does not justify a finding that his sons do not hold a legitimate interest in the property.
Result
[18] The application must accordingly be disallowed. The respondents are entitled to an order that the caveat lapse. I order accordingly.
Costs
[19] The respondents seek costs on a category 2B basis of $11,485.50. for steps that are listed in the schedule to their submissions. There is nothing out of the ordinary about the claim.
[20] It is unlikely that costs of $11,485 (or any lesser amount) will be able to be met by Jack, but as costs follow the event under the statutory cost regime the respondents are entitled to the order they seek. I make an order for costs in the sum of $11,485 plus disbursements as fixed by the Registrar.
[21] I add a postscript: Jack West resides at the property. In terms of the agreement for sale and purchase he is entitled to live at the property for so long as he chooses. Counsel for his sons advises that they have every intention of honouring the agreement and other obligations placed upon them under the agreement. In my discussion with counsel he acknowledged that it is conceivable that Mr West has an interest in the property by reason of his right of indeterminate occupation and that right might support a caveat. I expressly make no determination on the point and this judgement should not be taken as an indication one way or the other. I simply record the nature of the discussion held between myself and counsel for the respondents at the hearing on the matter to complete the record of what occurred at the hearing.
Associate Judge Sargisson
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