F E MORRISON BY HER LITIGATION GUARDIAN M F FIBBES v D K FIBBES [2017] NZHC 128

F E MORRISON BY HER LITIGATION GUARDIAN M F FIBBES v D K FIBBES [2017] NZHC 128 [13February 2017]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYCIV 2016-470-000166[2017] NZHC 128UNDER Section 145A of the Land Transfer Act1952BETWEEN FAY ELAINE MORRISON BY HERLITIGATION GUARDIAN MANDYFRANCES FIBBESApplicantAND DIANA KATHLEEN FIBBESRespondentHearing: 13 February 2017Appearances: S Carey for the ApplicantD K Fibbes the Respondent in personJudgment: 13 February 2017ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN[1] The respondent (Diana) is the registered owner of a property at 20B KaneRoad, Papamoa (the property). A caveat was registered over that property by Diana'ssister Mandy, in the name of their mother (Ms Morrison). Mandy is Ms Morrison'slitigation guardian. Ms Morrison's health is not good.[2] Interim orders have been made by the Court on 8 November 2016 sustainingthe caveat until after the determination of the present application.[3] Ms Morrison's money was used to buy the property. It is not in dispute thatapproximately $305,000 of Ms Morrison's money was used, of which $166,000 hadbeen returned to her by Diana. Therefore Ms Morrison paid approximately $139,000of the purchase price of the property.[4] It is the case for Ms Morrison that Diana took the funds from her bank accountwithout authority while at the time holding Ms Morrison's Enduring Power ofAttorney. Diana disputes that claim. She says the money used to buy the propertywas a gift from Ms Morrison.[5] Ms Morrison denies the funds were gifted to Diana but were to be used topurchase the property with the agreement that Ms Morrison would own a sharecommensurate with her contribution to the purchase price.[6] Therefore it is submitted Ms Morrison is the beneficiary of a constructive trustand that she was as a result entitled to lodge a caveat.[7] The thrust of Diana's submissions is that Ms Morrison was of sound mind atthat time when her funds were used to assist with the purchase of the property. Dianasubmits that at that time "the EPA (Enduring Power of Attorney) was not invoked".Further because at that time Ms Morrison was living with Diana and Mr Fibbes thefather of Diana and Mandy she says the evidence of her and Mr Fibbes is to bepreferred over any evidence suggesting Ms Morrison's gesture to help fund Diana'spurchase was other than a gift.[8] The affidavit evidence provided by Diana and Mr Fibbes is strongly critical ofclaims contrary to theirs. Diana submits that her evidence shows that it "is patentlyclear that no beneficial interest or other caveatable interest ever existed as a groundfor the caveat".[9] On behalf of Ms Morrison it is submitted that claims of a beneficial interest inthe property arise in two ways:(a) Because it is the evidence of both Mandy and Mr John Gray a solicitorthat Ms Morrison told them separately that she had not authorised theremoval of her money from her bank account by Diana; and(b) A constructive trust arose because Diana agreed that Ms Morrisonowned (and owns) a share in the property, which share because it hasnot been registered, remains a beneficial interest.[10] The Court will usually review competing evidential claims briefly only. It isnot this Court's purpose to reach any conclusion on those differences because today'shearing is not suited for that purpose – and nor should it be.Factual overview[11] It is not in dispute that the funds in question were withdrawn from MsMorrison's bank account to purchase the property when Diana was Ms Morrison'sattorney. Diana forcefully resists claims that the money was taken without hermother's authorisation. Mr Carey's submission is that the consistent evidence ofMandy and Mr Gray as to Ms Morrison's contrary view creates at least a reasonablyarguable case that the funds were used without prior consent. Usually, a reasonablyarguable case is sufficient to warrant a caveat to stay in place.[12] Diana provides no evidence other than her own claims of a gift to her. Thereis nothing in writing confirming a gift or providing evidence of a formal arrangement.[13] Diana claims the support of her father in this proceeding. While his recentevidence firmly supports Diana's position, earlier written statements he made toMandy Fibbes provides reason for doubt. By that earlier evidence there is reason tobelieve he may not have been aware of any gifting arrangement at the time.Conclusion[14] Ms Morrison's application is made under s 145A of the Land Transfer Act1952. The claim of a beneficial interest in property need only show that the case isreasonably arguable.1[15] Summary removal of a caveat is proper only where:It is patently clear that there was no valid ground for lodging the caveat in thefirst place or patently clear that the interest no longer existed.2[16] A caveat should not be removed in summary proceedings if there is a disputeof fact. The summary process is not suitable for the determination of questions of fact.[17] Issues of factual disputes are a feature of this case. Usually and appropriatelya caveat will be sustained until determination of those factual differences by anappropriate hearing process.[18] Diana is firm in her commitment to her account as is, presently, her father byhis evidence in support. Regardless, the truth of the matter is far from clear and shouldbe left for determination upon a proceeding brought by Ms Morrison to recover herclaim of a contribution or an interest itself in the property that her funds wereunquestionably used for.Result[19] Ms Morrison's application to sustain her caveat is granted.[20] However, that caveat will remain until 28 April 2017 and shall lapse at 4:00pmon that date unless Ms Morrison has sooner filed a proceeding in the High Court insupport of her claim of an interest in the property.1 Sims v Lowe [1988] 1 NZLR 656 at 660 CA.2 Mall Finance & Investment Co Ltd v Slater [1976] 2 NZLR 685 at 686.[21] Costs are reserved for determination upon any application made after 28 April2017.Associate Judge Christiansen