SARAH PATRICIA SPARKS v OLLIVER TRUSTEE COMPANY LIMITED (In Liquidation) [2020] NZHC 486

SARAH PATRICIA SPARKS v OLLIVER TRUSTEE COMPANY LIMITED (In Liquidation) [2020] NZHC486 [11 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-001507[2020] NZHC 486UNDER the Property (Relationships) Act 1976IN THE MATTER of an application to commence proceedingsagainst a company in liquidation and anapplication for second notice of claim to beregisteredBETWEEN SARAH PATRICIA SPARKSApplicantAND OLLIVER TRUSTEE COMPANYLIMITED (In Liquidation)RespondentBANK OF NEW ZEALANDIntervenorCIV-2019-404-002232UNDER the Property (Relationships) Act 1976 andthe Land Transfer Act 2017BETWEEN SARAH PATRICIA SPARKSPlaintiffAND ST HELIERS CAPITAL LIMITEDDefendantHearing: 10 February 2020Appearances: S Sparks, Applicant in PersonNo appearance for or on behalf of Olliver Trustee Company Ltd(In Liquidation)P J K Spring and J E A B Morton for St Heliers Capital LtdF B Barton for Bank of New ZealandJudgment: 11 March 2020JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 11 March 2020 at 3.30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] These disputes concern contiguous blocks of land, together comprisingapproximately 28 hectares, at Paraparaumu. The registered owner of the first blockknown as 109 Kapiti Rd is Olliver Trustee Ltd (In Liquidation) (OTL). The registeredowner of the second block known as 77 Kapiti Rd is St Heliers Capital Ltd (SHC).[2] OTL and SHC are companies associated with Gregory Martin Olliver who wasformerly married to the applicant, Sarah Patricia Sparks (Mr Olliver and Ms Sparksrespectively).[3] Ms Sparks lodged notices of claim under s 42 of the Property (Relationships)Act 1976 (PRA) over both blocks. The notice of claim against 109 Kapiti Rd haslapsed and SHC has applied to the Registrar of Land that the notice of claim over77 Kapiti Rd lapse also.[4] In these proceedings, Ms Sparks applies for orders:(a) that she be allowed to lodge a second notice of claim over 109 KapitiRd;1 and(b) that her notice of claim lodged over 77 Kapiti Rd not lapse.2[5] The application in [4](a) is opposed by the Bank of New Zealand (BNZ) whohas been given leave to intervene in the proceeding.[6] The application in [4](b) is opposed by SHC.[7] There are overlaps of fact and law in relation to the two applications but forclarity I will keep them separate and deal with each in turn.1 Land Transfer Act 2017, s 146.2 Section 143.109 Kapiti Rd– CIV 2019-404-1507Background[8] Ms Sparks and Mr Olliver were married in 2000. They separated in 2012 andtheir marriage was dissolved in 2014. There has been much litigation between themor entities with which they are associated. In addition to these proceedings there is aproceeding between them in the High Court under the PRA that is part-heard.[9] 109 Kapiti Rd is approximately 10.40 hectares of undeveloped land. OTLacquired the property in July 2013 for development and sale. Mr Olliver is a directorof OTL and owns the shares in the company. OTL is the trustee of the Olliver FamilyTrust. The trust deed of the Olliver Family Trust is not in evidence.[10] OTL entered into the following loan agreements with the BNZ to acquire anddevelop 109 Kapiti Rd:(a) $9,550,000 revolving credit facility on 17 July 2013; and(b) $8,170,000 revolving credit facility on 2 February 2016.[11] BNZ's advances are secured by a first registered mortgage. BNZ has alsomade advances to SHC upon security of a first registered mortgage over 77 Kapiti Rd.There are unlimited interlocking guarantees in respect of the advances to OTL andSHC. All advances are further secured by way of a General Security Agreement overthe assets of both companies.[12] OTL and SHC have defaulted on their loans. As at 21 August 2019, the balanceowed by OTL in respect of the advances made to it was approximately $21,000,000.The total owed to the BNZ by both OTL and SHC was more than $40,000,000. Thisamount increases with penalty interest charges at the rate of around $5,000 a day.[13] On 23 July 2015, Ms Sparks lodged a notice of claim under s 42(2) PRA over109 Kapiti Rd.[14] OTL went into liquidation in 2017 and the liquidator applied to the Registrarthat Ms Sparks's notice of claim lapse. Ms Sparks did not receive notice of thatapplication. Consequently, her notice of claim lapsed on 10 January 2019. She learnedof this on 18 February 2019 but did not immediately apply to the Court for permissionto lodge a second notice of claim as she hoped to settle her relationship propertydispute with Mr Olliver. When this did not occur, Ms Sparks applied for leave tocommence proceedings against OTL3 and for permission to lodge a second notice ofclaim.[15] On 5 November 2019, Associate Judge Smith made an order grantingMs Sparks leave to commence this proceeding against OTL. In the same ruling, theJudge granted the BNZ leave to intervene in the proceeding.4[16] The liquidators of OTL took no part in the hearing and abide the decision ofthe Court.The law[17] To lodge a notice of claim under s 42 PRA a claimant must have:(a) been married to, in a civil union with or living in a de facto relationshipwith the registered proprietor of the land, or a person who is entitled to,or is beneficially interested in the land; and(b) have an unresolved claim to an interest in the land under the PRA.5[18] A claim to such an interest is deemed to be a registerable interest for thepurposes of the Land Transfer Act and notices of such claim may be lodged with theRegistrar-General of Land in the prescribed form.63 Companies Act 1993, s 248(1)(c).4 Sparks v Olliver Trustee Company Ltd [2019] NZHC 2877.5 R L Fisher (ed) Fisher on Matrimonial and Relationship Property (online loose-leaf ed,LexisNexis) at [9.17].6 Property (Relationships) Act 1976, s 42(1).[19] A notice of claim has effect as if it were a caveat against dealings lodgedpursuant to s 138 of the Land Transfer Act.7 It does not create any interest in the land.Where a notice of claim has been removed8 or has lapsed9 a second notice of claimmust not be lodged by or on behalf of the same person to protect the same estate orinterest except by order of the Court.10 The granting of consent to lodge a secondnotice of claim is an indulgence and the claimant's claim is scrutinised carefully.11[20] To justify the making of an order that a claimant may lodge a second notice ofclaim, the claimant must at least establish an arguable case necessary to sustain theinterest claimed. Where the notice of claim lapsed because the claimant failed toexercise his or her rights to apply to sustain the notice of claim,12 some explanationfor that failure will normally be required before the Court will exercise its discretionin the claimant's favour. The Court may refuse its consent even if the claimantestablishes an arguable case, if it is shown the continuance of registration of the noticeis not reasonably required to protect the claimant's rights under the PRA.13Ms Sparks's explanation for allowing the notice of claim to lapse[21] Ms Sparks did not receive notice that application had been made that her noticeof claim lapse.14 It is unclear whether a notice was not sent to her address for service,or, it was sent and not passed on to her. The BNZ does not argue the Court shouldrefuse her application for this reason. In those circumstances, I accept Ms Sparks hasprovided an adequate explanation for the failure to exercise her rights under s 143 toapply for an order that her notice of claim not lapse.7 Section 42(3).8 Land Transfer Act 2017, s 142.9 Section 143.10 Section 146.11 Cotton v Keogh [1996] 3 NZLR 1 (CA) at 9.12 Land Transfer Act 2017, s 143(3) and (4).13 Fisher, above n 5, at [9.28] and Neil Campbell, Campbell on Caveats (3rd ed, LexisNexis,Wellington, 2019) at [10.021d].14 Land Transfer Act 2017, s 143(2).The remaining issues[22] But that does not mean Ms Sparks is entitled to an order that she may lodge asecond notice of claim. She must satisfy the Court she has an arguable claim to aninterest in 109 Kapiti Rd on the basis set out in her notice of claim. In addition, theBNZ argues the Court should refuse to grant Ms Sparks's application as the ordersought is not required to protect her rights under the PRA.Does Ms Sparks have an arguable claim to an interest in 109 Kapiti Rd[23] Ms Sparks argues she established the necessary interest when she successfullyregistered her notice of claim. This is incorrect. When a notice of claim is presentedfor registration in proper form the Registrar is obliged to enter the notice on theregister. The Registrar does not have to be satisfied the claimant is entitled to lodgethe notice.15 That is a matter for the Court to decide.[24] Ms Sparks's notice of claim describes her interest in 109 Kapiti Rd as follows:Derivation from Registered ProprietorGregory Martin Olliver, as company director and shareholder of OlliverTrustee Limited, is entitled to, or beneficially interested in WN40D/130 byvirtue of an unregistered agreement or other instrument or transmission, or anexpress or implied trust, or by virtue of some other circumstances.Relationship DetailsUnder the Property (Relationships) Act 1976, an interest is claimed by virtueof the marriage with the above spouse or partner.[25] The argument that Ms Sparks advances to an interest in 109 Kapiti Rd is notfounded on her notice of claim and I deal with this below.[26] As far as the notice of claim is concerned, Mr Olliver's shareholding anddirectorship of OTL does not give him a legal or beneficial interest in 109 Kapiti Rdagainst which Ms Sparks may make a claim under the PRA.1615 Section 147.16 Pisidia Holdings Ltd v Darby [2019] NZHC 1216 at [16]; Strait Views Ltd v Hannaway (2005) 6NZCPR 725 (HC) at [28]; Ten Pin Properties Ltd v Bowlarama (New Zealand) Ltd HCChristchurch M655/89, 18 December 1989 cited in Mahon v The Station at Waitiri Ltd [2017]NZCA 387, (2017) 18 NZCPR 760 at [35].[27] The issue then arises whether Mr Olliver has a beneficial interest in 109 KapitiRd under "an unregistered agreement or other instrument or transmission, or anexpress or implied trust, or by virtue of some other circumstances." OTL is the trusteeof the Olliver Family Trust. The trust deed of the Olliver Family Trust is not inevidence. It has not been established that Mr Olliver is a beneficiary of the trust. Itcannot be inferred that he has an interest in 109 Kapiti Rd as a beneficiary of theOlliver Family Trust. There is also no evidence from which the Court could find thatOTL holds the land by way of an implied or constructive trust for Mr Olliver.17[28] In addition, Ms Sparks presented no argument as to how it is, assumingMr Olliver has a beneficial interest in 109 Kapiti Rd, she has any claim to an interestin the property under the PRA in circumstances where it was acquired post-separationand the purchase was funded by the BNZ.[29] All that, however, is by-the-by because at the hearing Ms Sparks claimed aninterest in 109 Kapiti Rd on an entirely different basis. She argued 109 Kapiti Rd isheld upon a constructive trust for her in reliance upon Lankow v Rose.18[30] Ms Sparks's alternative claim to an interest in 109 Kapiti is unsound. Aninterest as beneficiary under a constructive trust is not the interest claimed in her noticeof claim. Where a claimant lodges a notice of claim on one basis but seeks to justifyit on another, the notice will generally be held to be defective.19[31] More substantively, such a claim as Ms Sparks now makes is not an interestpursuant to the PRA as is required by s 42(1). Fisher notes:20Thus, a party who is claiming to have an interest based, for example, on aconstructive trust (rather than the Act) cannot use a s 42 notice but must resortto a caveat under the Land Transfer Act 2017. A s 42 notice that has beenlodged on this basis will be removed.17 Heazlewood v Joie de Vivre Canterbury Ltd [2015] NZCA 213, (2015) 30 FRNZ 521.18 Lankow v Rose [1995] 1 NZLR 277.19 Colin Adams Ltd v Baker CA178/98, 5 May 1999 at [5] and [7].20 Fisher, above n 5, at [9.28].[32] In Heazlewood v Joie de Vivre Canterbury Ltd, the Court of Appeal also noteda claimant's interest in land under a constructive trust "may sustain a caveat underthe Land Transfer Act but it will not sustain notices of interest under the PRA."21[33] I am also satisfied Ms Sparks does not have an arguable interest in 109 KapitiRd under a constructive trust. Lankow v Rose is authority that in the context ofdomestic relationships where one party contributes in a more than minor way to theacquisition, preservation or enhancement of the property of the other the Court willgive effect to the reasonable expectations of both parties. The Court does this by theimposition of a constructive trust in respect of such share or interest in the property asis necessary to recognise the parties' expectations.22 For that reason, a Lankow v Roseconstructive trust will not be found in the absence of an actual common intention asto how property is to be shared.23[34] A claimant asserting an interest in property in reliance upon Lankow v Rosemust establish four features:24(a) that they made direct or indirect contributions to the property inquestion;(b) an expectation of an interest in the property;(c) that such expectation is a reasonable one; and(d) that the owner of property should reasonably expect to yield to theclaimant an interest in the property.[35] Direct financial contributions as well as indirect contributions that assist in theacquisition, improvement or maintenance of the property or its value will qualify.Provisions that help the other party acquire, improve or maintain the property or its21 Heazlewood v Joie de Vivre Canterbury Ltd, above n 17, at [38] citing Fisher, above n 5, at [9.29].See also Parry v Parry [2019] NZHC 2388 at [30].22 Fisher, above n 5, at [4.32].23 Charles Rickett "Instrumentalism in the Law of Trusts – The Disturbing Case of the ConstructiveTrust upon an Express Trust" (2016) 47 VUWLR 463.24 See Lankow v Rose, above n 18 at 294.value will also qualify.25 However, in Wakenshaw v Wakenshaw the Court of Appealheld a claimant's contributions must be more than minor, causally related to theacquisition, preservation or enhancement of the property, and manifestly exceed anybenefits that the claimant derives from the arrangement.26 Merely living together in adomestic relationship with the mutual sharing of support and affection is, on its own,insufficient, and sharing unequally in household and domestic expenditure does notgenerally give rise to a claim either.27[36] There is no evidence that Ms Sparks contributed to the acquisition of109 Kapiti Rd. It was purchased after Mr Olliver and Ms Sparks separated. Thepurchase was funded entirely by the BNZ. There is no evidence she has contributedto the property's enhancement or preservation either. There is no evidence she madeany other relevant contribution to the property.[37] Ms Sparks referred to there being relevant evidence in the part-heard PRAproceeding but she did not produce any such evidence and the Court cannot beexpected to look for it nor could I make any assessment of such evidence which is yetto be subject to a ruling by another Judge.[38] Given the absence of any contribution to the property and the circumstancesunder which it was acquired Ms Sparks cannot reasonably expect to have any interestin 109 Kapiti Rd and OTL cannot be expected to yield one to her. Her claim to aninterest in the land on this basis is not arguable.The BNZ's position[39] The BNZ's interest as registered mortgagee takes priority over and isunaffected by any interest that Ms Sparks may seek to protect with her notices ofclaim.28 The BNZ argues there is no equity in either 109 or 77 Kapiti Rd that mightat some stage in the future be available to Ms Sparks or any creditors. There is no25 At 295.26 Wakenshaw v Wakenshaw [2017] NZCA 252 at [25].27 Fisher, above n 5, at [4.33].28 Property (Relationships) Act 1976, ss19 and 46.practical advantage in allowing her to lodge a second notice of claim as she has nolegitimate interest to protect.29[40] Evidence was given for the BNZ by Craig John Dungey (Mr Dungey). He isan experienced banker with the BNZ since 1978 and is responsible for theadministration of the loans of OTL and SHC and other entities associated withMr Olliver.[41] Mr Dungey described the borrowings of OTL and SHC and says the companieshave defaulted on their loans. The BNZ has been considering its options regarding77 Kapiti Rd and 109 Kapiti Rd and there are no commercially attractive optionsavailable.[42] The BNZ commissioned valuations of both 77 Kapiti Rd and 109 Kapiti Rd inJuly 2018. Colliers International valued the freehold market value of the properties inan "as is" state at:(a) 77 Kapiti Rd - $7,900,000 plus GST (if any);(b) 71/109 Kapiti Rd - $4,950,000 plus GST (if any); and(c) the properties together (if titles were amalgamated) - $10,900,000 plusGST (if any).[43] As at 29 August 2019, the balance owing on OTL's loans alone wasapproximately $21,000,000. On the valuation evidence available to it and the currentloan balances the BNZ's shortfall upon mortgagee sale would be around $16,000,000in relation to OTL alone. A mortgagee sale of both 77 Kapiti Rd and 109 Kapiti Rdwould likely result in a shortfall in the region of $25,000,000.[44] Based on the BNZ's estimates, if 109 Kapiti Rd was developed and sold, theshortfall in relation to OTL's loans would be between $2,000,000 and $12,000,000.29 200 Victoria Street Ltd v Henderson HC Auckland CIV-2010-404-3894, 30 June 2010 at [8].[45] The estimated shortfalls are, of course, growing every day with penaltyinterest.[46] The BNZ has not identified any possible scenario where there is equityremaining in the properties after the BNZ's loans are repaid. It has also not been ableto identify any assets of OTL or SHC of any value beyond the properties that mightsatisfy the debt.[47] The BNZ is opposed to Ms Sparks's application because as mortgagee itwishes to be free to take such actions as it considers appropriate based on commercialconsiderations to minimise its losses. A notice of claim would inhibit the ability ofOTL to refinance the debt owed to the BNZ as any refinance would require conditionalagreements to purchase at least part of the property post-development. This would beharder to achieve if there was a notice of claim on the title as it would prevent OTLfrom being able to subdivide and/or provide title to prospective purchasers. A noticeof claim could therefore prevent the BNZ's access to the assets that should be availableto it as mortgagee.[48] Ms Sparks raises several matters in response to Mr Dungey's evidence. First,she says in previous litigation involving entities associated with her and Mr Olliver,Mr Dungey gave evidence on behalf of the BNZ that it would not recover the totaloutstanding under loans secured by mortgage over properties at St Heliers but whenthe properties were sold the BNZ was fully repaid. She argues this may be a case ofhistory repeating itself. She also says that the BNZ's position has not been tested byputting the properties on the open market.[49] In the case to which Ms Sparks refers, CIT Holdings Ltd v Glover No 2 Ltd,Associate Judge Osborne refused to order the removal of caveats against St Heliersproperties.30 He rejected an argument that the caveator had no legitimate interest inthe properties as there was no equity in them because there was evidence that the priceat which the registered owner intended to sell the properties did not represent marketvalue.31 This included that the intended sale price of the properties was $6,000,00030 CIT Holdings Ltd v Glover No 2 Ltd [2014] NZHC 3114.31 At [62] – [87].less than recent capital valuations and the sales were to interests associated with theregistered owner and Mr Olliver.[50] There is no evidence that suggests the Colliers valuations upon which the BNZrelies are unreliable. It is not enough that Ms Sparks asserts the valuations may bewrong. In circumstances where she has presented no valuation evidence of her ownand there is no other reason for me to consider the Colliers valuations unreliable Iaccept them. The absence of other valuation evidence is particularly note-worthywhen the expected shortfalls upon the sale of 77 Kapiti Rd and 109 Kapiti Rd are solarge it is inconceivable the Colliers valuations are incorrect to an extent that therecould be a surplus after sale.[51] Ms Sparks says the BNZ is meddling and colluding with Mr Olliver. I see noevidence of that and accept the BNZ's only interest is the recovery of the money it isowed. Ms Sparks relies upon a judgment of the Court of Appeal that identified aconcern that the BNZ may collude with Mr Olliver.32 In fact, the Court was referringto Ms Sparks's concern and made no finding of collusion.[52] There are presently Planning changes affecting the properties which have beenpublicly notified and will become operative once appeals in respect of them have beendetermined. Those changes will alter the uses to which the properties may be put andare likely to result in an increase in their values. The Colliers valuations take accountof the changes.[53] Based on the evidence before me, I am completely satisfied Ms Sparks has nolegitimate interest in 109 Kapiti Rd and she will not be prejudiced by the refusal ofher application to lodge a second notice of claim. There is no prospect the BNZ willbe paid what is owed under its mortgage upon the sale of the property whether in adeveloped or undeveloped state.[54] It follows from all of the above that Ms Sparks's application for permission tolodge a second notice of claim must fail.32 Glover No 2 Ltd v Bank of New Zealand [2016] NZCA 182 at [49].77 Kapiti Rd– CIV 2019-404-2232Background[55] 77 Kapiti Rd is approximately 17.6 hectares of undeveloped land. SHC is theregistered owner of 77 Kapiti Rd. Mr Olliver is sole director of SHC. The BankhouseTrust Ltd (Bankhouse Ltd) is the sole shareholder of SHC. Mr Olliver is the directorand the sole shareholder of Bankhouse Ltd. Bankhouse Ltd is a corporate trustee forthe Bankhouse Trust. The Bankhouse Trust was created by deed of trust dated 19March 2001. Mr Olliver is the settlor of the Bankhouse Trust and is both adiscretionary and a final beneficiary. On 12 September 2014, Ms Sparks was removedas a discretionary beneficiary of the trust and the spouse of Mr Olliver as at the dateof final distribution was excluded as a final beneficiary.[56] 77 Kapiti Rd was formerly owned by Kapiti Ventures Ltd. The property washeavily encumbered by several mortgages. CIT Holdings Ltd (CIT) was a companyincorporated by Mr Olliver and Ms Sparks owned by the trustees of the Glover Trust.The Glover Trust was established to benefit Mr Olliver, Ms Sparks and their children.CIT paid interest on debt secured against 77 Kapiti Rd and obtained an option topurchase the property from the then first mortgagee. CIT declined to exercise theoption and nominated Bankhouse Ltd to do so. Bankhouse Ltd acquired the propertyin October 2010 and it was immediately transferred to SHC. The purchase was fundedby the BNZ at a price of approximately $6,150,000. The BNZ took a first registeredmortgage over the property. In October 2014, CIT took a mortgage over the propertywhich I understand was to secure repayment of the interest payments that had beenmade by it amounting to $260,000. This has been repaid. Further advances have beenobtained from the BNZ and as at 30 October 2019 the amount owing to the BNZ was$21,559,218.[57] On 23 July 2015, Ms Sparks lodged a notice of claim over 77 Kapiti Rd. On30 September 2019, SHC applied to the Registrar-General of Land that the notice ofclaim lapse. Ms Sparks received notice of this on 30 September 2019 and made herapplication for an order the notice of claim not lapse on 16 October 2019.The law[58] Before the Court will sustain Ms Sparks's notice of claim she must show areasonably arguable case in support of the interest she has claimed. An order forremoval of the notice of claim will not be made unless it is clear the notice of claimcannot be maintained either because there was no valid ground for lodging it orbecause the ground upon which it was lodged no longer applies.33 The Court retainsa discretion to remove the notice of claim if it is completely satisfied the removal willnot prejudice the interests of Ms Sparks.34 Applications of this kind are not generallysuitable for finally resolving the rights of the parties, resolving disputed questions offact or deciding disputed questions of law. In circumstances where there is conflictbetween the affidavits, the Court will generally prefer the evidence of the claimant.35Does Ms Sparks have an arguable claim to an interest in 77 Kapiti Rd?[59] Ms Sparks's notice of claim describes her interest in 77 Kapiti Rd as follows:Derivation from Registered ProprietorGregory Martin Olliver is entitled to, or beneficially interested in WN16B/638by virtue of an unregistered agreement or other instrument or transmission, oran express or implied trust, or by virtue of some other circumstances.Relationship DetailsUnder the Property (Relationships) Act 1976, an interest is claimed by virtueof the marriage with the above spouse or partner.[60] Mr Olliver is not and has never been the registered owner of 77 Kapiti Rd.SHC is the registered owner and the sole shareholder of SHC is Bankhouse Ltd.Although Mr Olliver is the sole shareholder of Bankhouse Ltd and a discretionary andfinal beneficiary of the Bankhouse Trust, he does not have a beneficial interest in theland. Any beneficial interest he has can only be in the shares of Bankhouse Ltd andnot in the land.36 It was recognised by Keane J in Unkovich v Marbeck,37 where a33 Sims v Lowe [1988] 1 NZLR 656 (CA) at 659 – 660.34 Philpott v Noble Investments Ltd [2015] NZCA 342 at [26].35 Bethell v Rickard [2013] NZCA 68 at [22].36 Pisidia Holdings Ltd v Darby, above n 16.37 Unkovich v Marbeck [2015] NZHC 742 at [24].spouse's interests lie only in shares of the company that owns land and not the landitself this can be fatal to the validity of a s 42 notice.[61] Once again Ms Sparks did not present arguments based on her notice of claim.She argued that her interest in 77 Kapiti Rd was under a constructive trust. For thereasons I have already given above that is not an interest that will sustain a notice ofclaim under s 42(1) PRA.[62] I am again satisfied Ms Sparks does not have an arguable case to an interest in77 Kapiti Rd on this basis. Ms Sparks claims to have made contributions to 77 KapitiRd in several respects. Her evidence is contained in an affidavit of 23 January 2020in reply to an affidavit of Mr Olliver. I set out the relevant evidence in full: Contributions were made directly and indirectly by the Plaintiff both in herrole as spouse, Mother and funder supporting her whānau and her husband inthe form of working free on entity business in the roles of Director and Trusteeand advancing funds [Exhibit A] to keep him afloat and the entities afloat allduring the course of the marriage which included when the Kapiti propertywas acquired.Mr Olliver used the plaintiff to acquire Kapiti then disposed of her afterseparation. The Plaintiff was actively involved in the property acquisition andrefers to documents showing her copied in on all emails regarding the securitydocumentation and insurance and her signature is side-by-side Mr Olliver's.This evidence and more is well documented and before High Court in thematrimonial matter CIV-2015-404-2828 should His Honour seek to have thatadduced for more visibility.The Applicant's expectation was always that she shared fairly and justly in thefruits of the marriage and Bankhouse Trust was included in that [63] She refers to her role as a spouse, mother and funder supporting her family andher husband working for free on entity business in the roles of director and trustee. AsI noted earlier, providing domestic support will generally not qualify as a relevantcontribution to the property of another. Ms Sparks was also never a director of SHCor of Bankhouse Ltd or a trustee of the Bankhouse Trust and so did not performservices in that capacity.[64] Next, Ms Sparks refers to advancing funds to keep Mr Olliver afloat during themarriage and attaches as an exhibit an email dated 5 June 2009 which refers to legalfees of $207,000 paid to Minter Ellison Rudd Watts. There is no other evidence thepayments were made or where the funds came from and, if paid by Ms Sparks, thiswas prior to 77 Kapiti Rd being acquired. There is no apparent connection betweenthem and the acquisition, maintenance or improvement of 77 Kapiti Rd.[65] Ms Sparks says she was actively involved in the property's acquisition andattaches emails she was copied into concerning security documentation and insurance.Being copied into emails does not amount to a contribution to the property.[66] Ms Sparks also attaches a deed pursuant to which CIT assigned its option topurchase 77 Kapiti Rd to Bankhouse Ltd but Ms Sparks' signature was in her capacityas a director of CIT, not on behalf of SHC or Bankhouse Ltd.[67] Given the evidence I am unable to see that Ms Sparks made any direct orindirect contributions to 77 Kapiti Rd and find that her claim to an interest in theproperty based on a constructive trust is not arguable.Exercise of the discretion[68] For reasons I have already given in relation to 109 Kapiti Rd, even if, contraryto my findings, Ms Sparks has an arguable claim to an interest in 77 Kapiti Rd underthe PRA she has no legitimate interest in maintaining her notice of claim as there is noequity in the property to protect. In the exercise of the Court's discretion her noticeof claim should be allowed to lapse on this basis also.Result[69] I dismiss Ms Sparks's application for leave to lodge a second notice of claimagainst 109 Kapiti Rd.[70] I dismiss Ms Sparks's application for an order that her notice of claim against77 Kapiti Rd not lapse. There shall be an order that notice of claim 10134192.2 lodgedby Ms Sparks against Record of Title Identifier 822686 shall lapse.[71] I reserve leave for the parties to apply for such further directions as may berequired to give effect to the orders made in this judgment.[72] Costs are reserved. If the parties cannot agree on costs I will receivesubmissions by way of memoranda within 21 days from SHC and BNZ. Ms Sparkswill have 14 days to reply. Memoranda are to be no longer than 5 pages._______________________O G PaulsenAssociate JudgeSolicitors:Keegan Alexander, AucklandAnderson Lloyd, DunedinAnd to: S Sparks, Applicant