HARVEY V GATESHEAD INVESTMENTS LTD HC AK CIV-2011-404-5909

HARVEY V GATESHEAD INVESTMENTS LTD HC AK CIV-2011-404-5909

The relationship property agreement was entered into in the face of impending creditor claims and had the effect (and was intended) to defeat creditors so it is void against the defendants under s47; consequently upon Mr Harvey's death the second plaintiff took the whole beneficial interest by survivorship and there is no seriously arguable case that the estate owns the property or that a severance creates an equitable interest capable of defeating the charging order; further, existing judgment creditors are entitled to enforce their judgment and this proceeding cannot collaterally undermine that enforcement, so interim relief is refused.

Citation
openlaw-736872f7_fe9a_4c62_8c13_ecee8117c6ad.pdf
Parties
First Plaintiff: Christopher Michael Harvey; Second Plaintiff: Rachel Susan Harvey; Third Plaintiff: Richard James Parker; First Defendant: Gateshead Investments Ltd; Second Defendant: Paranui Properties Ltd; Third Defendant: Beta Pacifica Corporation Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 November 2011
Procedural Posture
Civil / Interim Injunction Application (interlocutory)
Outcome
Interim relief denied in all respects; costs to defendants on a 2B basis
Legal Topics
Charging Order, Relationship Property Agreements, Interim Injunctions, Enforcement of Judgment, Accounts and Tracing, Summary Judgment, Balance of Convenience, Res Judicata
Property Law Insolvency Equity Civil Procedure Relationship Property Charging Order Relationship Property Agreements Interim Injunctions +5 more

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Parties

Christopher Michael Harvey

First Plaintiff

Rachel Susan Harvey

Second Plaintiff

Richard James Parker

Third Plaintiff

Gateshead Investments Ltd

First Defendant

Paranui Properties Ltd

Second Defendant

Beta Pacifica Corporation Ltd

Third Defendant

Procedural Posture

Civil / Interim Injunction Application (interlocutory)

Legal Issues

  1. 1 Whether there is a seriously arguable case that the Coatesville property belongs to the deceased's estate rather than the second plaintiff
  2. 2 Whether the relationship property agreement is void or voidable under s 47 Property (Relationships) Act 1976
  3. 3 Whether interim relief should stay advertising and sale of charged property

Ratio Decidendi

The relationship property agreement was entered into in the face of impending creditor claims and had the effect (and was intended) to defeat creditors so it is void against the defendants under s47; consequently upon Mr Harvey's death the second plaintiff took the whole beneficial interest by survivorship and there is no seriously arguable case that the estate owns the property or that a severance creates an equitable interest capable of defeating the charging order; further, existing judgment creditors are entitled to enforce their judgment and this proceeding cannot collaterally undermine that enforcement, so interim relief is refused.

Court Disposition

Interim relief denied in all respects; costs to defendants on a 2B basis

Orders

  • First plaintiff's application for interim injunction restraining advertising and sale of 1033 Coatesville-Riverhead Highway is declined
  • Second and third plaintiffs' application to halt further enforcement action under Insolvency Act 2006 s335(2) is declined