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

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

On the material before the Court the relationship property agreement of 16 December 2009 was intended to defeat creditors and/or had the effect of defeating creditors and is therefore void against the first and second defendants under s 47; however, whether the joint tenancy was severed in equity during the...

Source-derived case information.

Citation
openlaw-dd98d8f1_5381_4377_99c1_91a66bdfe03f.pdf
Parties
First Plaintiff: Christopher Michael Harvey; Second Plaintiff: Rachel Susan Harvey; Third Plaintiff: Richard James Parker; First Defendant: Gateshead Investments Limited; Second Defendant: Paranui Properties Limited; Third Defendant: Beta Pacifica Corporation Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 May 2012
Procedural Posture
Summary Judgment Application / Interlocutory (high Court)
Outcome
Summary judgment granted in part and refused in part: relationship property agreement declared void against defendants and notice of claim removed; summary judgment refused on vesting by survivorship and severance issues which proceed to trial.
Legal Topics
Relationship Property Agreement, Voidable Transactions to Defeat Creditors, Severance of Joint Tenancy, Survivorship, Charging Order, Summary Judgment
Property Law Insolvency Law Trusts and Succession Civil Procedure Land Title Law Relationship Property Agreement Voidable Transactions to Defeat Creditors Severance of Joint Tenancy +3 more

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Parties

Christopher Michael Harvey

First Plaintiff

Rachel Susan Harvey

Second Plaintiff

Richard James Parker

Third Plaintiff

Gateshead Investments Limited

First Defendant

Paranui Properties Limited

Second Defendant

Beta Pacifica Corporation Limited

Third Defendant

Procedural Posture

Summary Judgment Application / Interlocutory (high Court)

Legal Issues

  1. 1 Whether the relationship property agreement dated 16 December 2009 was void under s 47(1) or s 47(2) of the Property (Relationships) Act 1976
  2. 2 Whether the second plaintiff's joint tenancy in 1033 Coatesville‑Riverhead Highway was severed in the deceased's lifetime so that survivorship did not operate
  3. 3 Whether the interest in the property vested in the second plaintiff by survivorship on death

Ratio Decidendi

On the material before the Court the relationship property agreement of 16 December 2009 was intended to defeat creditors and/or had the effect of defeating creditors and is therefore void against the first and second defendants under s 47; however, whether the joint tenancy was severed in equity during the deceased's lifetime is an arguable defence that prevents summary judgment on the question of vesting by survivorship, so that the removal of the notice of claim is ordered but the survivorship/vesting issue must proceed to trial.

Court Disposition

Summary judgment granted in part and refused in part: relationship property agreement declared void against defendants and notice of claim removed; summary judgment refused on vesting by survivorship and severance issues which proceed to trial.

Orders

  • Declare void the relationship property agreement dated 16 December 2009 between Rachel Susan Harvey and Michael George Harvey as against the first and second defendants
  • Remove the notice of claim registered under the Property (Relationships) Act 1976 against title to 1033 Coatesville‑Riverhead Highway, Auckland pursuant to s 143 Land Transfer Act 1952