BISKIND V EAGLES NEST LTD HC WHA CIV-2010-488-687

BISKIND V EAGLES NEST LTD HC WHA CIV-2010-488-687

Because the plaintiff had established a cause of action and the defendants raised no defence, and because constructive trusts had been declared, the Court had jurisdiction to order, on demand, that each defendant either transfer a half share in the specified properties to the plaintiff or pay the market value of a half share, with valuation or sale procedures and priority for secured debt, and summary judgment was appropriate to grant that relief.

Citation
openlaw-28f90119_0c5d_4174_9387_80b9493c76ae.pdf
Parties
Plaintiff: Sandra Lois Biskind; First Defendant: Eagles Nest Ltd; Second Defendant: Eagles Nest Properties Ltd; Third Defendant: Whakamaram a 1999 Ltd; Fourth Defendant: Daniel Eliot Biskind
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 September 2011
Procedural Posture
Summary Judgment / Judgment on Summary Judgment Application and Orders for Transfer/payment Following Declarations of Constructive Trust
Outcome
Summary judgment granted; orders made that each of the first three defendants must on demand transfer a half share in the specified properties to the plaintiff or, at the defendant's election, pay the plaintiff the sum representing a half share of market value as determined by sale or agreed/appointed registered...
Legal Topics
Constructive Trust, Relationship Property Agreement, Declarations, Vesting Order, Summary Judgment
Property Law Family Law Equity and Trusts Civil Procedure Constructive Trust Relationship Property Agreement Declarations Vesting Order +1 more

Case Brief

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Parties

Sandra Lois Biskind

Plaintiff

Eagles Nest Ltd

First Defendant

Eagles Nest Properties Ltd

Second Defendant

Whakamaram a 1999 Ltd

Third Defendant

Daniel Eliot Biskind

Fourth Defendant

Procedural Posture

Summary Judgment / Judgment on Summary Judgment Application and Orders for Transfer/payment Following Declarations of Constructive Trust

Legal Issues

  1. 1 Whether summary judgment was available where defendants did not oppose
  2. 2 Whether the Court may order transfer of legal title or payment representing beneficial shares once a constructive trust is declared
  3. 3 Whether it is appropriate to use summary judgment procedure to give effect to consensual estate/relationship property arrangements

Ratio Decidendi

Because the plaintiff had established a cause of action and the defendants raised no defence, and because constructive trusts had been declared, the Court had jurisdiction to order, on demand, that each defendant either transfer a half share in the specified properties to the plaintiff or pay the market value of a half share, with valuation or sale procedures and priority for secured debt, and summary judgment was appropriate to grant that relief.

Court Disposition

Summary judgment granted; orders made that each of the first three defendants must on demand transfer a half share in the specified properties to the plaintiff or, at the defendant's election, pay the plaintiff the sum representing a half share of market value as determined by sale or agreed/appointed registered...

Orders

  • On demand the first defendant shall transfer a half share in each of the properties (certificates of title NA128D/532, NA128D/533 and NA128D/534), together with all improvements, or, at the first defendant's election, pay to the plaintiff on demand the sum representing a half share of the market value of each...
  • On demand the second defendant shall transfer a half share in the property (certificate of title NA24B/1091), together with all improvements, or, at the second defendant's election, pay to the plaintiff on demand the sum representing a half share of the market value of the property together with improvements, such...