Woolf v Kaye aka Woolf - [2018] NZHC 2940

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1043

[2018] NZHC 2940

BETWEEN
VIRGINIA WOOLF

First Plaintiff

VIRGINIA WOOLF as Executor of the Estate of Noel Bernard Woolf

Second Plaintiff

AND

ALWYN BERNARD KAYE (previously known as ALWYN BERNARD WOOLF

First Defendant

MARK WILLIAM SYDNEY CLARK as

Executor of the Estate of Violet Isabel Woolf Second Defendant

Hearing: On the papers

Appearances:

G A Keene for the Plaintiffs

A Gilchrist and C Fry for the Defendants

Judgment:

13 November 2018

JUDGMENT OF GORDON J

This judgment was delivered by me
on 13 November 2018 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Foy Halse, Auckland
Richard Wood, Auckland

Counsel:G A Keene, Auckland A Gilchrist, Auckland

WOOLF v KAYE [2018] NZHC 2940 [13 November 2018]

Introduction

[1] On 24 August 2018, I gave judgment in favour of the first defendant, Mr Kaye, against his sister, the first plaintiff, Ms Woolf.1 I dismissed all of Ms Woolf’s claims in respect of a residential property (the property) which she occupied (and continues to occupy) and whose sole registered proprietor is Mr Kaye. I then made the following orders:2
(a)Ms Woolf’s claims for breach of contract, resulting trust, constructive trust and for a sale order are all dismissed (Ms Woolf having failed to prove those claims on the balance of probabilities).

(b)I enter judgment for Mr Kaye in the sum of $273,165.01, being mesne profits for the period of six years prior to 25 June 2015, together with interest pursuant to s 87 of the Judicature Act on that sum.

(c)I make an order in favour of Mr Kaye for possession of the property at 14 Woodhall Road, Epsom, being all that parcel of land containing 562m² more or less being contained in Lot 1 on Deposited Plan 190523 Indemnifier NA 120B/931 (North Auckland Registry), to take effect two calendar months from the date of this judgment.

(d)I make an order in favour of Mr Kaye for a writ of possession for the property at 14 Woodhall Road, Epsom, being all that parcel of land containing 562m² more or less being contained in Lot 1 on Deposited Plan 190523 Indemnifier NA 120B/931 (North Auckland Registry), to take effect two calendar months from the date of this judgment.

(e)I make an order discharging the consent order under CIV-2015-404- 603 that Caveat No. 7005424.1 on the property at 14 Woodhall Road, Epsom, not lapse.

(f)I make an order that Caveat No. 7005424.1 on the property at 14 Woodhall Road, Epsom, being all that parcel of land containing 562m² more or less being contained in Lot 1 on Deposited Plan 190523 Indemnifier NA 120B/931 (North Auckland Registry), be removed.

(g)The remaining counterclaims made by Mr Kaye are dismissed.

[2] Ms Woolf now applies for an order staying execution of the orders made in (c), (d), (e) and (f) above pending her appeal of my substantive judgment to the Court…

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 aka Woolf

Details

AGLC: Woolf v Kaye aka Woolf [2018] NZHC 2940
Case: [2018] NZHC 2940
Decision Date: 13 November 2018

CaseChat Overview and Summary

This case involved a dispute between Virginia Woolf and her brother, Alwyn Kaye, over a residential property located at 14 Woodhall Road, Epsom. Woolf sought various remedies, including a resulting trust, constructive trust, and a sale order, which were dismissed by the High Court in August 2018. Kaye was awarded mesne profits and possession of the property. Woolf applied for a stay of execution of certain orders pending her appeal to the Court of Appeal. Kaye opposed the application.

The legal issues focused on whether Woolf should be granted a stay of execution pending her appeal, considering factors such as the potential nugatory effect of the appeal, the bona fides of the appellant, the effect on third parties, the novelty and importance of the questions involved, and the overall balance of convenience. The court examined whether Kaye would be injuriously affected by the stay and whether Woolf could afford the proposed rental payment of $300 per week.

The court determined that Kaye would not be injuriously affected by the stay since the property was not currently rentable due to necessary repairs. The appeal would not be rendered nugatory, as Woolf could still have an interest in the property if it were sold during the interim. The court found the balance of convenience favoured Woolf remaining in the property until the appeal was heard. Woolf's appeal had some prospects of success, particularly concerning the presumption of advancement and the contribution to the mortgage payments.

The court granted Woolf's application for a stay, subject to conditions including a weekly rental payment of $300, payment of utilities, and provisions for property inspections and maintenance. Woolf was also required to provide keys and the security code for the alarm system to Kaye's legal representatives. Costs of the application were to be determined later.

Orders