[1] This is another part of the sad story which has befallen the Saxton family. These caveat proceedings involved different branches of the family. The respondent, David Andrew Saxton, whom I will call David, owned a West Coast property which, in 2001, he decided in conjunction with members of his family to subdivide.

[2] On 7 November 2001 a number of agreements for sale and purchase were entered into, three of which are affected by these proceedings. The first contract was entered into with a family company, Heliventures Ltd, in relation to proposed Lot 1, for a consideration of $50,000. The second contract, in relation to Lot 3, was entered into with the family trust of David’s son, Morgan, the M D Saxton Family Trust for a consideration of $20,000. The third contract, in relation to Lot 4, was entered into with the family trust of David’s daughter, Lisa, (then Saxton, now Zwarst) the L T Saxton Family Trust, in relation to the proposed Lot 4, again $20,000. The composition of the trustees and the trusteeships has slightly altered but that is not material. In Heliventures, at the time of contract David had 60 per cent of the shares, Lisa 20 per cent and Morgan 20 per cent. Heliventures was subsequently placed into liquidation at a time when Ronald, Lisa and another Saxton, Christopher Saxton, who was an accountant, and in this context generally a professional trustee, were directors.

[3] The subdivision was undertaken. A certificate under s 224C of the Resource Management Act 1991 was issued on 4 March 2004. Titles issued on 26 May 2004. Copies were sent to Lisa and others on 29 June 2004.

[4] In October 2004, David and Morgan were arrested and charged with theft. On 29 October 2004, the Crown placed restraining orders on the titles to all the affected properties pursuant to the provisions of the Proceeds of Crime Act 1991.

[5] David and Morgan were subsequently convicted at their trial in 2007. David’s conviction was upheld on appeal in 2009. Morgan had in the meantime died.

[6] On 2 October 2011, Lisa, Ronald, and Christopher were parties at a hearing into a forfeiture application made by the…

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 Zwarst v Saxton

Details

AGLC: Zwarst v Saxton [2012] NZHC 448
Case: [2012] NZHC 448
Decision Date: 15 March 2012

CaseChat Overview and Summary

Ronald Zwarst, Lisa Saxton, and Christopher Saxton have filed applications to prevent the lapse of caveats over certain properties against David Saxton. The applicants claim to have enforceable contracts for the sale and purchase of the properties, as well as a trust over improvements made to one of the properties. David Saxton opposes the applications, arguing that the limitation period under the Limitation Act 1950 has expired and that the applicants have delayed unreasonably. The High Court of New Zealand, Associate Judge Osborne, considered the applicants' burden of proof, their entitlement to the beneficial interest in the properties, and the appropriateness of removing the caveats. The court held that the applicants had a reasonably arguable case for their interest in the properties and that the delay in enforcing their rights was excusable due to the Crown's restraining orders on the properties from 2004 to 2011. The court granted the applicants' applications, preventing the caveats from lapsing, and ordered David Saxton to pay costs on a 2B basis.

The court first addressed the issue of Heliventures' participation in the proceedings, ruling that Heliventures could be joined as a party despite not being initially named as an applicant. The court then considered the principles for determining the applications, including the burden of proof on the applicants, their entitlement to the properties, and the court's discretion in removing the caveats. The court also examined the limitation/laches defences raised by David Saxton, concluding that the applicants' delay in enforcing their rights was excusable due to the Crown's restraining orders, which prevented them from obtaining title to the properties. The court found that the applicants were entitled to final orders to protect their contractual and trust claims, and ordered that the caveats not lapse. The court also ordered David Saxton to pay costs on a 2B basis.

Orders