BETWEEN
VIRGINIA WOOLF

Plaintiff

AND

VIRGINIA WOOLF AS THE

EXECUTOR OF THE ESTATE OF NOEL BERNARD WOOLF

Defendant

AND

ALWYN BERNARD KAYE First Defendant

AND

MARK WILLIAM SYDNEY CLARK Second Defendant

Hearing: 26 May 2016

Appearances:

G A Keene for the Plaintiff
A Gilchrist for the First Defendant
No appearance for the Second Defendant

Judgment:

19 July 2016

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 19 July 2016 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Foy & Halse, Auckland
R Wood, Auckland

A Gilchrist, Auckland

WOOLF v KAYE & Anor [2016] NZHC 1628 [19 July 2016]

[1] This proceeding concerns an action by the plaintiff, Ms Woolf, in which she seeks enforcement of certain obligations that she says exist in respect of a property owned by the first defendant, Mr Kaye. Mr Kaye denies that any such obligation ever arose, and further says that if it had, the obligation would since have become unenforceable due to the passage of time. He pleads defences of limitation and laches.

[2] Mr Kaye applies for defendant’s summary judgment, or in the alternative to strike out the statement of claim and for security for costs. He requires leave to bring the summary judgment application out of time.

[3] It is common ground that the outcome of the strike-out application should mirror the outcome of the summary judgment application.

Background

[4] The proceeding relates to a home owned by the parties’ parents, Violet and Noel Woolf. The home was purchased in 1981 with a deposit and two mortgages. Virginia Woolf says that the deposit was supplied by Violet and Noel and that she, as well as Mr Kaye, made contributions to the purchase of the home such that she has a beneficial interest in it. She made those contributions because all four family members agreed that the purchase price would be split between Mr Kaye and the parents, and Ms Woolf and Mr Kaye would have responsibility for servicing the mortgages. Ms Woolf and Mr Kaye would live in and maintain the property, and the property would represent an investment for the benefit of all four family members. Ms Woolf says she did in fact maintain the property, made payments towards the mortgages and cleared one of them herself, and had the primary responsibility for arranging various property management matters including finding boarders for the property.

[5] Mr Kaye, on the other hand, says that his parents contributed, but that money was intended as a gift, not as securing an interest in the property. He says he was the only one who contributed to the mortgages, and there was no agreement that his parents or Ms Woolf should have a share in the property. Ms Woolf lived in the

house and paid rent, but she was a mere tenant, though she attempted from time to time to have…

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 Woolf v Kaye

Details

AGLC: Woolf v Kaye [2016] NZHC 1628
Case: [2016] NZHC 1628
Decision Date: 19 July 2016

CaseChat Overview and Summary

In Woolf v Kaye, the plaintiff, Virginia Woolf, sought enforcement of certain obligations in respect of a property owned by the first defendant, Alwyn Bernard Kaye. Kaye denied the existence of any such obligations and pleaded defences of limitation and laches. Kaye applied for defendant's summary judgment, or in the alternative to strike out the statement of claim and for security for costs. Woolf argued that there was an agreement that the purchase price of the home would be split between Kaye and the parents, and that she had a beneficial interest in the property due to her contributions to the purchase and ongoing maintenance. Kaye argued that there was no such agreement and that any claim was time-barred. The court found that there were disputed issues of material fact, and that the claims were not clearly untenable. The court declined the applications for summary judgment and strike out, and reserved costs on the summary judgment application. The security for costs application was not formally ruled on, as there was insufficient time to hear detailed argument.

Orders