HARVEY & ORS v GATESHEAD INVESTMENTS LIMITED & ORS [2013] NZHC 2253

HARVEY & ORS v GATESHEAD INVESTMENTS LIMITED & ORS [2013] NZHC 2253

The Court held the joint tenancy between Mr and Mrs Harvey was severed in equity by mutual agreement (and alternatively by course of dealing) prior to Mr Harvey's death; that equitable severance did not deplete the bounty available to creditors at the date of the Agreement and therefore s 47 PRA did not reverse the severance; accordingly Mr Harvey's half interest did not vest in the Official Assignee and the application to vest the entire estate in the Official Assignee was dismissed.

Citation
[2013] NZHC 2253
Parties
First Plaintiff/counterclaim Defendant: Christopher Michael Harvey; Second Plaintiff: Rachel Susan Harvey; Third Plaintiff: Richard James Parker; First Defendant/first Counterclaim Plaintiff: Gateshead Investments Limited; Second Defendant/second Counterclaim Plaintiff: Paranui Properties Limited; Third Defendant/third Counterclaim Plaintiff: Beta Pacific Corporation Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 August 2013
Procedural Posture
Civil Property and Insolvency (severance of Joint Tenancy) / Judgment
Outcome
Application by judgment creditors to vest entire fee simple estate in the Official Assignee dismissed; joint tenancy found severed and Mr Harvey's half interest does not vest in Official Assignee
Legal Topics
Severance of Joint Tenancy, Right of Survivorship, Property (relationships) Act 1976 S47, Voidable Transactions, Charging Order, Tenancy in Common, Mutual Agreement, Course of Dealing
Property Law Family/relationship Property Insolvency/bankruptcy Equity Severance of Joint Tenancy Right of Survivorship Property (relationships) Act 1976 S47 Voidable Transactions +4 more

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Parties

Christopher Michael Harvey

First Plaintiff/counterclaim Defendant

Rachel Susan Harvey

Second Plaintiff

Richard James Parker

Third Plaintiff

Gateshead Investments Limited

First Defendant/first Counterclaim Plaintiff

Paranui Properties Limited

Second Defendant/second Counterclaim Plaintiff

Beta Pacific Corporation Limited

Third Defendant/third Counterclaim Plaintiff

Procedural Posture

Civil Property and Insolvency (severance of Joint Tenancy) / Judgment

Legal Issues

  1. 1 Whether the joint tenancy between Mr and Mrs Harvey was severed prior to Mr Harvey's death
  2. 2 Whether severance occurred by mutual agreement or by a course of dealing
  3. 3 Whether s 47(2) Property (Relationships) Act 1976 voids or reverses any equitable severance and the effect on creditors/Official Assignee

Ratio Decidendi

The Court held the joint tenancy between Mr and Mrs Harvey was severed in equity by mutual agreement (and alternatively by course of dealing) prior to Mr Harvey's death; that equitable severance did not deplete the bounty available to creditors at the date of the Agreement and therefore s 47 PRA did not reverse the severance; accordingly Mr Harvey's half interest did not vest in the Official Assignee and the application to vest the entire estate in the Official Assignee was dismissed.

Court Disposition

Application by judgment creditors to vest entire fee simple estate in the Official Assignee dismissed; joint tenancy found severed and Mr Harvey's half interest does not vest in Official Assignee

Orders

  • The application by the counterclaim plaintiffs for an order vesting the entire estate in fee simple in the Property in the Official Assignee is dismissed
  • Executor (counterclaim defendant) entitled to costs on a category 2B basis in preliminary view; if not agreed executor to file memorandum within 20 working days and judgment creditors to file any response within 10 days