BOXALL AND ANOR v GRABOWSKI [2015] NZHC 824

BOXALL AND ANOR v GRABOWSKI [2015] NZHC 824

On the interlocutory record the Court found there is a serious question to be tried that the T Boxall Family Trust was effectively constituted on or about 3 May 2004 and that the Birkenhead property was transferred to Ms Boxall as trustee, based on contemporaneous documents (trust deed reciting $10 fund, loan agreements naming Ms Boxall as trustee, memorandum of transfer, mortgage registration and deed of acknowledgement of debt) and reasonable inferences; accordingly an interim injunction restraining sale/execution was granted subject to conditions.

Citation
[2015] NZHC 824
Parties
Plaintiff/applicant: Tracy Michelle Boxall; Plaintiff/applicant: Boxall Family Trustee Company Limited (as trustees of the T Boxall Family Trust); First Respondent: Livia Grabowski; Second Respondent: The Sheriff of the High Court at Auckland
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 April 2015
Procedural Posture
Declaratory Judgment and Interim Injunction Application Under the Declaratory Judgments Act 1908 / Interim Injunction Hearing (oral Judgment)
Outcome
Interim injunction granted restraining sale/execution of the property subject to conditions; costs reserved
Legal Topics
Constitution of Trust, Transfer of Property to Trustee, Interim Injunction (serious Question to Be Tried), Charging Order and Caveat, Recognition/enforcement of Foreign Judgment
Trusts Equity Property Law Civil Procedure Enforcement (execution of Judgment) Constitution of Trust Transfer of Property to Trustee Interim Injunction (serious Question to Be Tried) +2 more

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Parties

Tracy Michelle Boxall

Plaintiff/applicant

Boxall Family Trustee Company Limited (as trustees of the T Boxall Family Trust)

Plaintiff/applicant

Livia Grabowski

First Respondent

The Sheriff of the High Court at Auckland

Second Respondent

Procedural Posture

Declaratory Judgment and Interim Injunction Application Under the Declaratory Judgments Act 1908 / Interim Injunction Hearing (oral Judgment)

Legal Issues

  1. 1 Whether the T Boxall Family Trust was effectively constituted
  2. 2 Whether the Birkenhead residential property was transferred to Ms Boxall in her capacity as trustee
  3. 3 Whether trust assets (the property) are available for execution to satisfy a personal judgment against the trustee

Ratio Decidendi

On the interlocutory record the Court found there is a serious question to be tried that the T Boxall Family Trust was effectively constituted on or about 3 May 2004 and that the Birkenhead property was transferred to Ms Boxall as trustee, based on contemporaneous documents (trust deed reciting $10 fund, loan agreements naming Ms Boxall as trustee, memorandum of transfer, mortgage registration and deed of acknowledgement of debt) and reasonable inferences; accordingly an interim injunction restraining sale/execution was granted subject to conditions.

Court Disposition

Interim injunction granted restraining sale/execution of the property subject to conditions; costs reserved

Orders

  • Costs reserved