ROBERT ANTHONY BISHOP, DAPHNE JOY BISHOP, MICHAEL WAYLAND BROWN AND JUDITH ANN BOROWN V REX WESLEY SMITH AND WARWICK BRUCE SMITH HC GRY CIV 2007 418 165

ROBERT ANTHONY BISHOP, DAPHNE JOY BISHOP, MICHAEL WAYLAND BROWN AND JUDITH ANN BOROWN V REX WESLEY SMITH AND WARWICK BRUCE SMITH HC GRY CIV 2007 418 165

The applicants advanced sufficient evidence of pooled contributions, shared purpose and a common intention to hold the land for the group such that they have a reasonably arguable claim to an institutional constructive trust dating from 1982; accordingly the caveat must be sustained pending substantive proceedings, and limitation does not clearly bar the claim because s21(1)(b) may apply to recovery of trust property.

Citation
openlaw-01fd437d_6933_494f_94fa_2ce2edab3531.pdf
Parties
Applicant: ROBERT ANTHONY BISHOP; Applicant: DAPHNE JOY BISHOP; Applicant: MICHAEL WAYLAND BROWN; Applicant: JUDITH ANN BOROWN; Respondent: REX WESLEY SMITH; Respondent: WARWICK BRUCE SMITH
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 May 2008
Procedural Posture
Caveat Under Land Transfer Act 1952 / Application to Sustain Caveat; Interlocutory Hearing (6 May 2008)
Legal Topics
Constructive Trust, Caveat, Beneficial Interest, Institutional Vs Remedial Constructive Trust, Limitation Defences
Property Trusts Equity Limitation Land Transfer Act Constructive Trust Caveat Beneficial Interest +2 more

Case Brief

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Parties

ROBERT ANTHONY BISHOP

Applicant

DAPHNE JOY BISHOP

Applicant

MICHAEL WAYLAND BROWN

Applicant

JUDITH ANN BOROWN

Applicant

REX WESLEY SMITH

Respondent

WARWICK BRUCE SMITH

Respondent

Procedural Posture

Caveat Under Land Transfer Act 1952 / Application to Sustain Caveat; Interlocutory Hearing (6 May 2008)

Legal Issues

  1. 1 Whether applicants have a reasonably arguable claim to a beneficial interest in the land by way of an institutional constructive trust
  2. 2 Whether the applicants made contributions and had a reasonable expectation that created an equitable interest
  3. 3 Whether the caveat should be removed because no arguable ground exists

Ratio Decidendi

The applicants advanced sufficient evidence of pooled contributions, shared purpose and a common intention to hold the land for the group such that they have a reasonably arguable claim to an institutional constructive trust dating from 1982; accordingly the caveat must be sustained pending substantive proceedings, and limitation does not clearly bar the claim because s21(1)(b) may apply to recovery of trust property.