New Zealand Case Law: Decisions & Judgments

Topic

Implied trust

Legal area

Court

12 Apr 2022

CHRISTINE MARAMA COWAN v JOHN ARTHUR COWAN [2022] NZSC 43

Citation

[2022] NZSC 43
Court

Supreme Court

The Supreme Court dismissed the appeal and affirmed that where a second caveat is authorised following lapse/removal, the authorising court may require a substantive undertaking as to damages; because the appellants failed to provide an undertaking of substance and had delayed prosecuting substantive proceedings, the undertaking condition imposed by the Court of Appeal was not satisfied and the caveat was rightly removed to protect the registered proprietor from substantial and growing loss.
20 May 2019

LEXUS TRUSTEES LTD and RIDGE as trustees of the 24 TRUST v WARREN IAN FENNING [2019] NZHC 1109

Citation

[2019] NZHC 1109
Court

High Court

The merits of the discontinued counterclaim were not sufficiently obvious to influence costs; accordingly no uplift under r 14.6(3)(b) was awarded and standard Category 2B costs of $33,673 plus disbursements of $1,350 were ordered under r 15.23.
14 Jun 2017

WAKENSHAW v WAKENSHAW [2017] NZCA 252

Citation

[2017] NZCA 252
Court

Court of Appeal

The appeal is dismissed because the appellant failed to establish a reasonably arguable caveatable interest: her evidence of contributions is vague, disputed and insufficient to show contributions manifestly exceeding benefits or a mutual expectation of shared ownership; she cannot claim Norman's beneficial interest without letters of administration; there was no evidence Donald received the gift with notice of any trust; therefore the caveat was rightly ordered to lapse.
22 Apr 2016

WAKENSHAW v WAKENSHAW [2016] NZHC 773

Citation

[2016] NZHC 773
Court

High Court

The application was dismissed because the applicant failed to establish a reasonably arguable proprietary interest: there is insufficient evidence of contributions to purchase or of contributions giving rise to a common intention to share beneficial ownership; the applicant lacks standing as administrator of her late husband's estate; promises to gift or to create a trust were incomplete and do not create equitable rights; and no arguable case of undue influence was established.
22 Sept 2015

G N BROWN v KN BUILDING LIMITED [2015] NZHC 2290

Citation

[2015] NZHC 2290
Court

High Court

The applicant failed to establish a reasonably arguable caveatable interest at the time of lodgement because there was no credible evidence he was the nominated purchaser or that an implied trust arose from the renovation works; the caveat appeared lodged to secure payment and, on the evidence, the Court would exercise its discretion to dismiss the application and remove the caveat.
14 Mar 2011

TAYLOR JADE SCHMIDT V NOEL ROBERT HAIR HC AK CIV-2010-404-007389

Citation

openlaw-38309ed3_1a9f_4c02_8e33_e5c508f6c35f.pdf
Court

High Court

The court held the applicant's originating application was procedurally competent and her caveat was not barred by s148 nor by issue estoppel from her husband's earlier failed application; the applicant established an arguable factual basis for an implied/resulting trust claim but she failed to show an arguable case of fraud or dishonesty by the respondent sufficient to defeat indefeasibility under s182 of the Land Transfer Act; accordingly the application to sustain the caveat was dismissed.
22 Apr 2010

BFP TRUSTEES NO. 1 LTD AND BFP TRUSTEES NO. 2 LTD AS TRUSTEES OF THE BIRCHES NO. 1 TRUST V WARREN ANDREW CURRIN AND NICOLA JANE CURRIN HC WHA CIV-2010-488-000167

Citation

openlaw-23c334c3_430a_45cc_8b78_fb8fe59964b8.pdf
Court

High Court

The caveator presented sufficient evidence (letter of intent, accountant file notes and surrounding circumstances) to establish an arguable case of an implied trust such that the caveat should be sustained pending a confined substantive proceeding to determine recognition of the claimed interest; factual disputes require full hearing and cross‑examination and therefore do not warrant removal of the caveat at interlocutory stage.
31 Oct 2006

NEW ZEALAND GUARDIAN TRUST COY LIMITED V PORA AND ANOR HC AK CIV 2005-404-5900

Citation

openlaw-676a021b_a675_4452_936f_d7fa9db52b4c.pdf
Court

High Court

Although the lump sum was paid by ACC outside the statutory entitlement regime, the payment was calculated and designated as attendant care compensation and the settlement terms and acknowledgements demonstrate an intention that the funds reimburse caregivers; the Court therefore imposes an express trust and directs allocation of the fund among caregivers: 49.42% to the second defendant (estate of Rita Pora), 45.64% to the first defendant (estate of Tuamure Pora), and 4.92% to Vicky Pora, after deduction of costs properly chargeable to the fund.
10 Aug 2005

RENNIE V HAMILTON, CA CA157/04

Citation

openlaw-703f7744_fa40_4baa_8a94_5a4f97da6320.pdf
Court

Court of Appeal

The Court affirmed the High Court: the deceased's promise was properly regarded as relating to the business operations rather than the freehold; the appellant's advice and managerial services and access to takings did not amount to direct or indirect contributions sufficient to establish an institutional or implied trust under Lankow v Rose; accordingly no trust arose, but an award of $70,000 under the Law Reform (Testamentary Promises) Act 1949 was reasonable; appeal dismissed and no costs ordered.