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High Court of New Zealand Decisions |
Last Updated: 8 August 2023
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2020-404-001826
[2023] NZHC 1629 |
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BETWEEN
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PAUL MATTHEW OGILVIE
Plaintiff
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AND
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MING SHEUNG LI and SHUI LIN LEE
Defendants
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Hearing:
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26-28 April 2023
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Appearances:
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M Locke for the Plaintiff
H Waalkens KC and S Courtney for the Defendants
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Judgment:
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28 June 2023
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JUDGMENT OF WALKER J
This judgment was delivered by me on 28 June 2023 at 4 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
OGILVIE v LI [2023] NZHC 1629 [28 June 2023]
[1] Paul Ogilvie claims a property interest in the home he and his former wife lived in for over 14 years before they separated. The property is owned by, and registered in, the names of his former wife’s parents, the defendants.
[2] Mr Ogilvie met Ms Li in December 2003. They began dating. In July 2005, Mr Ogilvie moved into 2/39A Coronation Road, Auckland (the Property) where Ms Li was then living with flatmates.1
[3] The couple married in September 2007 in Hong Kong. There are two children of the marriage, born in 2011 and 2013.
[4] The couple separated in February 2019. The marriage was dissolved in May 2021. Ms Li remained in the Property after separation. The children have been in Mr Ogilvie’s full-time care since separation. There have been Family Court proceedings relating to care of the children.
[5] At separation, there was an insignificant relationship property pool. The Property is not part of the pool of relationship assets for division under the Property (Relationships) Act 1976 (the Act). Therein lies the problem for Mr Ogilvie.
[6] Mr Ogilvie left the marriage with nothing to show for it financially. He argues that his direct and indirect contributions to the Property, representations to him and sacrifices on his part in the context of the relationship:
(a) created a reasonable expectation justifying the remedy of constructive trust to avoid unjustly enriching the defendants; or
(b) estop the defendants from denying his interest in the Property.
[7] As his “expectation” has not been realised, Mr Ogilvie seeks the intervention of this Court. The Property has significantly increased in value. The purchase price paid by the defendants in 2004 was $323,000. No expert valuation evidence was led
1 The Property is variously referred to as 2/39A and 39B Coronation Road.
but according to Auckland Council records, the ratings valuation of the Property as at separation in early 2019 was $890,000. The ratings valuation is currently $1,075,000.2
[8] The defendants deny making any promise or representation to Mr Ogilvie and deny that they clothed their daughter with authority or otherwise authorised their daughter to make any promises or representations to Mr Ogilvie. Ms Li also denies making any alleged promises or representations to Mr Ogilvie. She supports and corroborates her parents’ defence.
[9] They argue that Mr Ogilvie could not have reasonably held any expectation of an interest in the Property. They dispute his evidence of reliance and detriment and say that, in any event, the pleaded reliance falls short of establishing a claim.
[10] The defendants live overseas. Ming Sheung Li presently lives and works in the People’s Republic of China. Shui Lin Lee lives in Hong Kong. Only Ms Lee and her daughter, Yui Man (Vickie) Li gave evidence for the defendants. Ms Lee’s evidence by AVL was given with the assistance of a qualified and experienced Cantonese court interpreter. Although Ms Lee’s brief was served in English, she confirmed that neither she nor her husband speak English and that the brief had been “read” to her in Cantonese via a translation tool for her approval.3
Overview of claim
[11] Mr Ogilvie relies on the line of authority originating with Lankow v Rose.4 His counsel submitted that the present claim is but one step removed because Ms Li’s parents, not Ms Li herself, are the legal owners of the Property.
[12] Mr Ogilvie has not made a claim against Ms Li in this proceeding. His counsel acknowledged that Mr Ogilvie can make no claim against the Property on her behalf and does not seek to do so.
2 The ratings valuation has significant limitations and is no substitute for expert market evidence.
4 Lankow v Rose [1995] NZLR 277 (CA).
[13] Mr Ogilvie’s amended statement of claim seeks a declaration that the defendants hold one half of the Property subject to a remedial constructive trust in his favour. He seeks an order requiring the defendants to pay to him a sum representing his beneficial interest plus money interest from the date the relationship ended.5
[14] The remedial goal posts shifted when Mr Locke opened the plaintiff’s case. Mr Locke depicted this shift as a more focused approach to the initially “fairly broad claim”. During closing submissions, Mr Locke accepted that the plaintiff was in fact seeking to amend the prayer for relief.6
[15] The relief that Mr Ogilvie now seeks is either to be placed in the position he would have been in if alleged representations were true and performed. That is, a one half share in the total equity in the Property as at separation date, adjusted in his favour for any subsequent increase in value but excluding the increase in equity from the defendants’ reduction of the mortgage.7 Alternatively, that the Court adopt a combined “contributions-based and compensatory approach”, namely one half of the increase in net value of the property subject to deductions representing the defendants’ capital contributions.
Background
[16] I set out a broad backdrop to the claims in this section. Further background is provided in the discussion section as needed.
[17] When Mr Ogilvie and Ms Li met, he was then an apprentice builder/carpenter boarding or renting accommodation. Ms Li was a full-time physiotherapy student. She had been living in New Zealand since 1999 when she arrived to attend high school. Ms Li is a fluent English speaker. She is an only child.
[18] In January 2004, Ms Li’s parents visited New Zealand. At that time, Ms Li was renting a flat in Northcote, Auckland with four flatmates. Her parents supported her financially. She worked part-time to supplement their support. Her parents decided to buy a property in Auckland. Ms Lee said that she and her husband followed the advice of an agent who suggested an investment property after learning of their daughter’s studies. This was to avoid paying rent to a third party on their daughter’s behalf and as an investment for their retirement. Ms Lee’s evidence was that investment properties are less accessible in Hong Kong and the New Zealand property market seemed a better option.
[19] The defendants paid $64,600 of the purchase price from their savings. The balance of $258,400 was funded by a loan from Westpac Banking Corporation (Westpac). Westpac registered a mortgage security against the title of the property.8
[20] Ms Li moved into the Property. As her parents lived overseas, Ms Li was to manage the Property, rent out the bedrooms, collect rent, organise payment of outgoings and arrange any maintenance. Ms Li described her role as a live-in manager while her parents were responsible for the Westpac mortgage and other outgoings. Responsibility for payment of outgoings changed during the course of the couple’s relationship. There was no explanation in the evidence as to when or why.
[21] Solicitors drafted Powers of Attorney and Deeds of Delegation (PoA) to facilitate Ms Li’s management of the Property. Ms Li’s father signed his on 27 January 2004 and her mother signed hers on 4 May 2004.
[22] Both are in the same form, in English and include the following terms:
(a) to act for me in my name on my behalf and in my interests in all matters with or in which I shall be in any way connected interested or concerned (whether solely or otherwise) as fully and effectually as I could if personally present.
(b) to sign and use my name in any manner in any deed document or writing
8 As at the date of the couple’s separation the outstanding balance on the mortgage loan was
$77,653.95.
(c) to at in my place as Attorney for any and all persons or bodies corporate who have appointed me or may appoint me their or its Attorney (whether solely or with another or others jointly or severally) by a deed which includes the power for me to substitute and appoint a substitute attorney or attorneys in my pace to exercise all the powers and authorities conferred upon me by such deed in terms of and to as full an extent as I could act thereunder as if personally present.
[23] In a section of the PoA described as “examples of powers”, the appointers declare that Ms Li has the power, among other things, to enter into or to perform any contract in relation to their property or affairs present or future which they might enter into personally and to purchase, sell, exchange, mortgage, charge or pledge any real or personal property either alone or jointly with any other person.
[24] Ms Lee confirmed that her daughter’s responsibilities were to find flatmates, organise for rent to be paid into her parents’ bank account with Westpac and to manage maintenance for the property. Ms Lee’s explicit understanding was that, though her daughter held the PoA, she still required their permission before making any significant decisions regarding the Property. Not only did Ms Li understand that this was the case but Mr Ogilvie confirmed that this was also known to him.
[25] Ms Li said that she did not pay rent to her parents until she finished her undergraduate studies in 2006. Mr Ogilvie said that he started to pay rent in 2005. Ms Li disputed this. She maintained that it was not until 2007 that he started to pay rent. No relevant bank statements prior to a Westpac Bank statement dated 9 March 2007 were available to confirm one way or another. In my assessment, Ms Li’s recollection is less reliable on this issue given contemporaneous email correspondence between the couple, Mr Ogilvie’s explanation that he paid rent into an ANZ account belonging to Ms Li rather than the defendants’ Westpac account in the early years and Ms Lee’s evidence that once she found out in late 2005 that Mr Ogilvie had moved in, she required him to pay rent. However, nothing ultimately turns on this. What is clear is that Mr Ogilvie was fully aware from the outset that rent was payable to the defendants. Payments from his account were generally described as such in the early years and the bank records that do exist generally included narrations with the same description.
[26] Thus, Mr Ogilvie was well aware that the defendants owned the Property. The arrangement was spelt out to him in an email from Ms Li on 9 June 2005, at about the time he was considering moving in with Ms Li. She explained that her parents subsidised her rent in return for her looking after their house for them. She wrote:
If we are living outside of their home and flatting with other peopple (sic). We certainly wouldn’t get away with $70 + epw between the two of us. The reality is, I, as a landlord has [sic] to be fair to other flatmates who live here. Theoretically, we are flatmates who share a flat. We should all pay a fair amount of rent. I pay less is because [sic] my parents subsidise me on my rent AND they look after all the repairs.
[27] And later in the same email:
Our living situation is a slightly complexed [sic] one because I am flatting in my parents property (which means I have to act in their best interest) ...
[28] The couple continued to live with flatmates. Ms Li’s evidence was that in 2007 they were all paying “reasonable market rent”, perhaps a little below market, although the basis for this view is unclear as no market evidence was pointed to. At that time, the couple had two flatmates. Based on figures extracted from bank account statements, in March 2007 the other occupants were collectively paying about $1,020 per month; Mr Ogilvie was paying about $460 per month and Ms Li was paying about
$436 per month—a total of $479 per week and $1,916 per month for the entire house. Sometime in 2008, the number of flatmates reduced to one only.
[29] Mr Ogilvie’s brief of evidence canvassed the couple’s relationship in detail. His attempt to capture the relationship dynamic and their respective contributions to the relationship permeated his brief. At times it read as though led in support of a claim for unequal division of relationship property under s 13 of the Act. Mr Waalkens successfully applied to strike out many paragraphs as irrelevant and inadmissible given the pleaded issues before the Court.9
[30] The rump of that evidential material did however provide some relevant context. A reliable picture of any long-term relationship is virtually impossible to convey given its nuances and inconstancy over time. However, the overall impression
9 Ruling of Walker J dated 26 April 2023.
conveyed by the contemporaneous messages between the couple and after seeing and hearing the evidence of Mr Ogilvie and Ms Li, is that the relationship was volatile.10 The couple’s financial incompatibility led to friction. They found it difficult to meet day-to-day expenses. Mr Ogilvie expended effort to appease Ms Li while taking on the responsibility of providing the family income and, according to him, the lion’s share of the child minding. Ms Li was both working and studying while also playing top-level sport. I glean that there were pressures on each which contributed to the financial strain. Moreover, Ms Li’s parents did not approve of the relationship. The couple’s relationship became increasingly tense in the years before separation.
[31] Mr Ogilvie supported Ms Li while she completed her undergraduate degree, her post-graduate diploma in health sciences in 2013 and her master’s degree in health science with honours (first class) in 2017. During some of his apprenticeship, Mr Ogilvie also undertook part-time study in business and construction management. He decided not to complete his studies when their second child was born due to family pressures. The side-lining of his studies appears to be a source of resentment for him.
[32] Ms Li’s evidence was that she worked full time from her graduation in 2006 until when she was pregnant with their first born in 2010. Ms Li’s tax returns for the financial years 2016 to 2019 indicate that she earned about half of Mr Ogilvie’s income in that period, consistent with part-time work. Mr Ogilvie was the primary income earner throughout the relationship. He also contended that he managed the household while Ms Li “controlled the finances”. Ms Li emphatically rejected any suggestion that she did not contribute meaningfully and fully to the household and explained that part-time work enabled her to be with their two young children. There is no doubt that Mr Ogilvie’s perception of the couple’s unequal contribution is another source of resentment.
[33] During the marriage, Ms Li set up a business called Distinctli Trading with financial support from her parents. It appears that little or no income was generated from the business activities. While Mr Ogilvie was convinced that relationship
property had been applied by Ms Li to further the business, this was also not supported by evidence. It was ultimately a red herring.
[34] Ms Lee said that they gave no express authority to their daughter to make any representations (if any were made) and did not hold out that she had authority. They deny that their intention was to convey any interest in the Property to their daughter. As they see the position, any payments that the couple and/or Mr Ogilvie made when they lived in the Property were rent payments and/or outgoings in exchange for the benefit of living there. They say that was the arrangement they made with their daughter.
[35] Ms Li denied ever telling Mr Ogilvie that his name would one day be on the title to the Property. Her evidence was that, shortly after they were married, he asked her to ask her parents to “put his name on the title”. They refused. She says her parents gave her the choice then to move out or to stay at the Property paying rent and continuing as property manager. She said that she relayed this to Mr Ogilvie. Ms Lee confirmed this conversation between her and her daughter. In his evidence in chief, Mr Ogilvie denied ever making this request. On cross-examination, he appeared at first blush to walk back from his evidence. Mr Waalkens seized on this. However, in my assessment, Mr Ogilvie had interpreted and responded to the question in an overly literal manner as relating to an “interest” rather than having his name on the title. Little can therefore be taken from his answer. The exchange was as follows:11
Q: So the truth of the matter is, that you did ask Vickie at some stage after you got married, whether she would ask the parents whether you could have an interest in the property, didn’t you?
A: They don’t record that there, but we, you know.
Q: You did ask Vickie to ask her parents and she reported back to you that the answer was, “No, he would not have an interest in the property”.
A: I don’t remember that, no.
[36] In any event, as the relationship evolved, so did Mr Ogilvie’s perception. What may have been understood shortly after they married is not necessarily the case for the entire relationship.
[37] The couple operated various different bank accounts (both joint and personal). The financial records produced to the Court were limited given the passage of time. Ms Li’s evidence was that she was unable to obtain any statements for her accounts from BNZ prior to 2018, from ASB prior to 2014, from ANZ prior to 2012 and no National Bank statements. The precise nature of the requests for documents from the banks was not apparent on the evidence.
[38] Mr Ogilvie paid his wages into his personal account up until December 2014. Between that date and November 2017, he paid his wages into the couple’s joint account. Thereafter, until separation, his wages were paid into Ms Li’s personal account. In cross-examination, Ms Li explained this was to make it easier for her to pay the household expenses.
[39] Ms Li explained that all household expenses were paid from her personal account, having been set up that way and never altered. This included electricity, phone and internet, water, day care and vehicle expenses. Ms Li made monthly (and subsequently fortnightly) payments to her parents’ Westpac bank account from which mortgage repayments were then taken. It seems that she set the amount to be paid, most likely in consultation with her parents (or at least her mother). Her mother stated on cross-examination that the payments were never more than enough to cover the mortgage repayments but this is inconsistent with evidence from Ms Li about a period after one mortgage loan had been paid off.
[40] Ms Li said that any surplus over and above what was required to meet those payments was remitted from time to time to her parents. According to Ms Li, half of the “rent” was paid to Westpac to meet mortgage instalments and half to her parents by paying into a dedicated account in Ms Li’s name and then remitted to her parents.
[41] It seems that there was surplus from at least 2013 and Ms Li accounted to her parents by online transfers. It appears that Mr Ogilvie was oblivious to these transfers
at the time. The transfers occurred with the narration “insurance” or some variation thereof. Ms Li explained that the erroneous narration was merely a product of not having altered the payment narration from the first occasion when it was accurate.
[42] The monthly (and subsequently fortnightly) payments, from Mr Ogilvie’s account and to the defendants’ account were variously described as “rent” or “mortgage”. As discussed, the documentary record before the Court is incomplete. Few bank statements were produced. One statement from the defendants’ account is dated 9 March 2007. The second is dated 9 June 2009. The March 2007 statement has one line entry with the description “Rent Mortgage Paul”. The June 2009 statement records four transactions with descriptions of either “Lo Por Rent” and “Rent Lui Coronation Road”. “Lo Por” is the English phonetic spelling for the word “wife” in Cantonese and “Lui” is the same for “daughter”.
[43] Mr Ogilvie referred in his brief of evidence to the variety of descriptions in the bank accounts for the payments relating to property expenses. Some of the deposit name variations in a Westpac account from which funds were transferred by Ms Li to the defendants’ loan account are:
(a) 2007 – Rent Mortgage Paul; Mortgage with Love; Paul Rent Lui; Coronation Rd Lo Por Rent;
(b) 2008 – Rent Lui; Coronation Rd;
(c) 2010 – Rent Lui; Coronation Road; Rent Paul;
(d) 2016 – House Repayment Lui ANZ; Lui For Rent; Lui Bill Rent;
(e) 2018 – Family Coronation; Contribution for MaPa; Coronation Rd; Help Lui Home;
(f) 2019 – Lui Rent Plus Loan; Lui MTP Loan; Vickie Lui Rent.
[44] Ms Li said that Mr Ogilvie persuaded her to reduce the number of flatmates and ask her parents to split the mortgage so that payments could be made fortnightly
rather than monthly. She said that the couple were being paid fortnightly and weekly so “this arrangement made paying rent more manageable for us”. I infer that this means that more frequent payments coinciding with wages coming in meant that the funds were not spent elsewhere. The amount the couple paid did not change. Mr Ogilvie’s perspective was slightly different. He says that they decided together that fortnightly payments would allow them to “pay off the mortgage faster”. He said that this was one of the factors supporting his understanding that the couple was not paying rent but paying the mortgage for their own benefit and not for the benefit of the defendants.
[45] Ms Li travelled to Hong Kong every two years to visit her parents. Sometimes she took one or both children. Mr Ogilvie’s evidence was that these visits imposed further financial strain and that during those visits, Ms Li specifically asked him to carry out household maintenance tasks such as painting the house.
[46] On 4 April 2016, the defendants transferred $87,973 to Ms Li and asked her to deposit the funds into the Westpac mortgage account to pay off one of the previously split mortgages. At her mother’s request, Ms Li did not mention this to Mr Ogilvie. Although this payment reduced the mortgage liability, Mr Ogilvie’s wages continued to be paid into the joint account and, as far as he knew, the payments to Westpac did not reduce. Ms Li said she continued to remit the surplus payments to her parents. In her evidence in chief, Ms Li said:
My parents had the opportunity to reduce the rent we paid to only what was necessary to meet the mortgage. However, they did not. The primary purpose behind this was that my parents wished to retain some rental income. The secondary purpose was that, if we were struggling financially at any point, I was able to prioritise the half of the rent that went to the bank over the half of the rent that went to my mother. My mother would not charge us any late fees/penalty.
[47] This evidence does not appear on its face to tally with a schedule prepared by Ms Li summarising average weekly rent the couple paid between 2007 and 2019 produced from an analysis of bank statements (the Li schedule). It shows the couple’s payments rising and falling, peaking at $430 per week in 2009 and consistently trending down from 2015 with further significant falls from 2016. Between 2016 and 2017, coinciding with the defendants’ payment of the mortgage, the weekly payment
significantly decreased from $373 to $306. By 2018 it was only $281 per week. This apparent discrepancy was not explored by counsel in cross-examination and Mr Ogilvie was unable to comment on the accuracy of the schedule presented to him during the trial without recourse to the bank statements.
[48] After separation, Ms Li continued to live in the Property. She said that she pays subsidised rent per month reflecting her single income and obligations of child support. She maintained that the difference between the subsidised amount and the amount her parents would wish to charge is a debt owed to her parents which increases each month. Ms Li did not refer the Court to any records supporting this arrangement and it was not referred to by Ms Lee. However, Mr Locke did not mount any challenge to this evidence.
Legal principles
[49] The elements of a constructive trust claim in the relationship context are well established. The claimant needs to show:12
(a) direct or indirect contributions to the property in question;
(b) the expectation of an interest in the property;
(c) that such an expectation is a reasonable one; and
(d) that the defendant should reasonably expect to yield the claimant an interest.
[50] It is for Mr Ogilvie to demonstrate that any contributions justify an entitlement to an interest given that the legal title is held by the defendants.13
12 Lankow v Rose, above n 4, at 294.
13 KP Malcolm Ltd v Malcolm [2012] NZCA 230 at [55(b)].
[51] The Court of Appeal has recently summarised how the principles first set out in Lankow v Rose have since fared.14 In relation to the above four elements, a claimant must establish:
(a) more than a minor direct or indirect contribution to the acquisition, preservation or enhancement of the defendant’s assets;
(b) that in all the circumstances both parties must be taken to reasonably have expected the claimant would share in the assets as a result;
(c) a causal relationship between the contributions and the acquisition, preservation or enhancement of the defendant’s assets; and
(d) that the contributions manifestly exceed any benefits that the claimant derives from the arrangement.
[52] Establishment of a constructive trust requires more than an intention to gift. The contribution or other factors must be such it would be unconscionable not to perfect the gift.15
Application of legal principles where the property is not owned by a former partner
[53] The more typical context for the application of these principles is a claim in respect of separate property of one partner in the relationship or owned by a trust in which one partner is co-trustee. Mr Locke submitted that the defendants’ ownership is no impediment, drawing an analogy with claims where the property is held by a family trust. His proposition is that ownership by the defendants in their personal capacity is broadly similar to ownership by trustees albeit one where neither partner is a trustee.
[54] The Court of Appeal accepted in Murrell v Hamilton that there is no reason in principle why a constructive trust claim should not succeed in respect of a property
14 Wakenshaw v Wakenshaw [2017] NZCA 252 at [25].
15 Harvey v Beveridge [2014] NZCA 72, (2014) 15 NZCPR 205 at [32].
owned by a trust.16 The end assessment is the same—whether the trustees should reasonably expect to yield an interest in the trust property. In Murrell, the independent trustee allowed the plaintiff’s partner (his co-trustee) to bind the trustees to contracts relating to the construction of the property at issue. His actions were treated as the actions of both trustees, or at least as actions binding on both trustees vis-à-vis the contract counterparties.17 The Court said:18
As both trustees must be taken to have stimulated Ms Murrell’s reasonable expectation that her contribution would be recognised by way of an interest in the Trust’s property, it would be unconscionable for the two trustees to deny Ms Murrell’s claim.
We emphasise that allowing Ms Murrell’s claim does not alienate Trust property, that is it does not take away from the beneficiaries of the Trust something to which they are entitled. Rather, it means a part of the value of the Trust’s property which should not accrue to the Trust does not accrue to it. Allowing Ms Murrell’s claim averts the unjust enrichment which would otherwise result to the Trust.
[55] Subsequently, the Court of Appeal in Vervoort v Forrest confirmed that a constructive trust over assets held by a trustee, over which he or she has effective control, can arise from the Lankow v Rose factors.19
Estoppel
[56] The principles relevant to a claim of estoppel were succinctly summarised by Grice J in Hollands v Sorensen.20 I gratefully adopt her summary:
[58] The law on estoppel is now regarded as settled. Historically there were three strands of estoppel: estoppel by representation, promissory estoppel and proprietary estoppel. The New Zealand courts now recognise a unified doctrine of equitable estoppel. There are four elements required to establish this:
16 Murrell v Hamilton [2014] NZCA 377 at [22]. See also Hawke’s Bay Trustee Co Ltd (Trustees) v Judd [2016] NZCA 397, (2016) 4 NZTR 26-019 where the Court said that the independent trustee had abjured, in that the trustee had handed over authority to the co-trustee husband, who accepted capital contributions by his partner on behalf of the trust. In those circumstances, the Court found it would be unconscionable for the trust not to recognise the benefits freely accepted by it.
17 At [28].
18 At [29]–[30].
19 Vervoort v Forrest [2016] NZCA 375, [2016] 3 NZLR 807 at [71].
20 Hollands v Sorensen [2021] NZHC 103 citing Sutherland v Lane [2020] NZHC 721. See also Gold Star Insurance Co Ltd v Gaunt [1998] 3 NZLR 90 (CA) at 86. The amended statement of claim refers to “promissory estoppel” but the argument advanced by Mr Locke relied on a proposition that the New Zealand courts now recognise a unified doctrine of equitable estoppel.
(a) The person alleged to be estopped has created or encouraged by words or conduct a belief or expectation in the claimant of the estoppel.
(b) The claimant has reasonably relied on the belief or expectation.
(c) The claimant will suffer detriment if the person alleged to be estopped departs from the belief or expectation.
(d) It would be unconscionable for the person alleged to be estopped to depart from the belief or expectation.
[57] While every case in this field is fact sensitive, the circumstances in Hollands merit discussion. Mr Locke submitted that Hollands is analogous to the present case in that the home was owned by interests connected with one partner’s parents but sought to distinguish the factors which defeated the plaintiff’s claim in that case.
[58] The parties were in a relationship for nearly 20 years and had two children. The home they lived in at the time they separated was owned by a trust. The trustees were Mrs Hollands’ parents. Mrs Hollands was the principal beneficiary. The trust had purchased a home at the request of, and selected by, Mr and Mrs Hollands to replace a smaller home they previously occupied. The previous home was also owned by the trust.
[59] The Hollands did not contribute any capital but lived in the property for some ten years. After the breakdown in the marriage, Mr Hollands asserted that the trustees had represented that the Hollands were the owners of the property. He also relied on contributions to the outgoings and detrimental reliance in the form of having foregone the opportunity to buy a home of their own.
[60] The Hollands paid the expenses and outgoings in lieu of rent. These payments were less than market rent according to expert valuation evidence. They included rates, insurance and contributions to loan payments.21 From time to time, the trust also advanced or gifted money to the Hollands to pay debts and for their personal use. Rental income from the first property owned by the trust was paid into the Hollands’ joint account for their use.
[61] The Court found that the parents, in their capacity as trustees, did not create or encourage by words or conduct the belief or expectation that the Hollands would have a share in the property or receive a benefit from it, either for their contributions or because the couple suffered detriment in reliance by not buying a house themselves.22 The Court said that mere discouragement from buying a property would not establish a claim of estoppel without more.23
[62] The Court found that the plaintiff’s contributions were no more than the level of general repairs and maintenance which did not add to the value of the property. Neither were they significant. The payment of outgoings, even to the mortgage, was not a relevant contribution to the property in the circumstances.24
[63] It is clear from the Court’s discussion that the plaintiff in that case had not been disadvantaged by the arrangements in place; it was not a one-sided arrangement in terms of transfer of value. Rather, the Hollands had received considerable assistance from the wife’s parents throughout the relationship. This informed the Court’s decision. It is the most telling distinguishing feature.
Issues
[64] The issues in relation to the estoppel claim can be distilled to the following:
(a) Did the defendants, or Ms Li acting with actual or ostensible authority, create or encourage a belief or expectation of an interest in the Property?
(b) Did Mr Ogilvie reasonably rely on any representations or conduct to his detriment in circumstances where it would be unconscionable for the defendants to depart from the belief or expectation?
[65] The issues in relation to the constructive trust claim are:
22 At [162].
23 At [163].
24 At [160].
(a) Did Mr Ogilvie make more than minor direct or indirect contributions to the Property?
(b) Was it reasonable for Mr Ogilvie to expect an interest in the Property?
(c) Should the defendants reasonably expect to yield an interest to him?
[66] These broadly stated issues subsume the sub-issues set out more recently by the Court of Appeal at [51] above.
[67] If either claim is made out, the Court must also decide what is the appropriate relief or remedy.
Estoppel
Did the defendants, or Ms Li acting with actual or ostensible authority, create or encourage a belief or expectation of an interest in the Property?
[68] Mr Ogilvie accepted that there were no discussions or communications directly between him and the defendants, nor any express representations by them. Rather, all of his ‘understandings’ about the Property came from Ms Li in whom he understandably trusted and expected to act for their joint benefit. It is hardly surprising that Mr Ogilvie does not rely on any express representations by the defendants in circumstances where he had no relationship with them and they were not able to communicate given the language barrier.
[69] The evidence does not support the claim that Ms Li acted with actual or ostensible authority if and when making any relevant representations to Mr Ogilvie.
[70] First, a fundamental requirement of ostensible authority is that the principal represents that the agent has the authority. It is not sufficient that the agent merely holds himself or herself out as having such authority.25
[71] As the defendants themselves did not say anything to Mr Ogilvie about Ms Li’s authority, he relies on the provision of the PoAs from the defendants and the defendants’ acquiescence by conduct in the circumstances.26
[72] The widely expressed powers in the PoAs could in theory constitute a representation of authority for relevant purposes but did not in the circumstances of this case. Mr Ogilvie knew and clearly understood the reasons for and limitations of the exercise of any power under those documents. He was under no illusion about the practical reality. He knew that Ms Li had to consult her parents in respect of any major dealings and that they had to agree before Ms Li could take any significant steps. This included any prospect of replacing the Property with another home. The power and/or delegation exercisable was circumscribed. Ms Li had limited agency in respect of dealings with the Property which did not extend to speaking for and on behalf of her parents in all property related matters. This is borne out by the contemporaneous correspondence. The communications between Ms Li and her mother about minor aspects of the Property more consistent with a limited purpose agency only.
[73] Secondly, the evidence does not support the pleaded case of conduct or acquiescence on the part of the defendants. Those pleaded particulars are:
(a) permitting he and Ms Li to have the exclusive occupation of the Property.
(b) permitting or requiring he and Ms Li to pay all mortgage instalments and other outgoings;
(c) acquiescing while:
(i) he and Ms Li did not take steps to save to acquire another home;
(ii) he dissipated savings brought to the relationship and spent monies received as inheritance on a family holiday;
(iii) Ms Li worked part time after the birth of the couple’s first child, studied and trained for her chosen sport;
(iv) Mr Ogilvie carried out the larger part of childminding and running the household;
(v) he abandoned his study toward a university degree in construction management;
(vi) he supported Ms Li financially while she started a business with her father; and
(vii) he either solely or jointly with Ms Li carried out and/or paid for work on the property.
[74] These matters were not squarely put to Ms Lee and ought to have been.
[75] In short, there is no evidence that the defendants knew of the relevant aspects of the relationship dynamic between the couple. They visited infrequently. They communicated only with Ms Li (and presumably the children who are very young) save for one email which appeared to have been translated in poor English. Nor, in my assessment, are those pleaded matters, individually or collectively, capable here of creating the legal consequences that Mr Ogilvie seeks without more.
[76] Having found that Ms Li was not the defendants’ agent, and that they did not clothe her with agency, whether she in fact created or encouraged a belief or expectation is not enough. Nonetheless, I turn to that issue.
[77] The pleading particularises the alleged representations. To the extent that an express representation is relied on, there is authority in the commercial equitable estoppel context that it must be clearly and unequivocally expressed. The context must in my view inform the question of whether a representation is clearly expressed. What may be insufficient in a commercial context may be sufficient in a long standing relationship where the representation is, for instance, consistent.
[78] The pleaded case is that Ms Li expressly represented that:
(a) the Property was in reality hers, having been acquired for her own use and benefit;
(b) the couple did not need to save up for their own family home because they already had one;
(c) Mr Ogilvie’s name would one day be put on the title of the Property along with Ms Li’s name.
[79] The amended pleading also included reference to emails and/or messages between the couple discussing the mortgage in respect of the Property and one message where Ms Li referred to the Property as “ou[r] home not a rental”, albeit in a particular and narrow context.27
[80] Mr Ogilvie said that all his efforts to instil a savings philosophy in the household were met with the retort that “the house is our savings”. However, in cross- examination, Mr Ogilvie accepted that Ms Li did not make any clear promises at all. Rather he said that he was “led to believe” the property might be theirs and he did not recall what she actually said.
[81] In my assessment, the high water mark of Mr Ogilvie’s evidence is his summation that:
Apart from the early stages of our relationship, during the whole of the time we were together Vickie led me to believe that the property was in reality hers, and that her parents had bought it for her, on the basis that they did not have to pay the mortgage or other outgoings. Her parents had essentially helped her buy a home, rather than having to pay rent. This was consistent with how our life together proceeded for the entire relationship.
(Added emphasis in bold; emphasis otherwise in original)
[82] In the early stages of the relationship Mr Ogilvie did not have any expectation of an interest in the Property. As Mr Ogilvie put it:
27 This message was not put to Ms Li in cross-examination.
“... because the property was owned by Vickie’s parents, it initially seemed to me that we should be saving for a deposit and paying off the mortgage on a property of our own, not paying off Vickie’s parents’ property, as this would be a waste of money from our point of view, and we needed to plan for our own future.”
[83] However, he pointed to Ms Li’s active investigations to buy another home as consistent with her creation and/or encouragement of his belief.28 Ms Li had discussions with a mortgage broker in 2008. These discussions led to pre-approved home loan offers from ASB, ANZ and Westpac dated 21 October 2008. The letters recorded pre-approval for a home loan to Ms Li and Mr Ogilvie of $685,000 subject to conditions. Those conditions included sale of the Property. Two of the three letters also required confirmation of an equity gift in the Property to Ms Li and Mr Ogilvie.
[84] Ms Li described these discussions as a “pipe dream” and not an indication that the equity in the Property was hers to deal with. Her evidence on that point was unconvincing. In my assessment, it is more likely that Ms Li anticipated that her parents would help out financially by way of gift of the equity in the Property or allowing the Property to be used as collateral for a deposit. Further that she indicated something along these lines to Mr Ogilvie or led him to believe of the possibility.29
[85] But mere anticipation of the prospect of parental assistance does not however advance Mr Ogilvie’s case. He knew that the defendants would have had to be consulted and agree to this course. It is also not clear what form and on what terms any assistance was hoped for. Ms Lee was sure that her daughter had never raised this with her and her evidence was not shaken in cross-examination.
[86] In various pieces of correspondence between the couple, Mr Ogilvie in particular referenced the mortgage on the Property as “our mortgage”. He sent reminders to Ms Li about payments being due. I accept that he believed that the outgoings payable on the Property were linked to the mortgage liability. Ms Li never disabused of him this belief. Yet this was not the case after April 2016 when, unbeknownst to Mr Ogilvie, the defendants arranged payment of a lump sum to reduce
28 This was not specifically pleaded as a particular relied on.
29 This was not pleaded as a ground supporting the claim to estoppel or constructive trust.
the mortgage. It was likely also not the case from 2013 when Ms Li was remitting the surplus to her parents.
[87] Ms Lee’s explanation for directing her daughter not to tell Mr Ogilvie about the reduction in mortgage liability after the defendants paid off one loan was that it was a “private matter of mine”.
[88] As the relationship further deteriorated, Mr Ogilvie began to audio-record various arguments between the couple. He said that he did so as evidence of treatment he says he received at the hands of Ms Li and out of concerns for the children. He sought to produce an audio clip of an argument on 13 December 2019 (and transcript) recording a statement by Ms Li that “Your name will never be on the deed, if this how [sic] you treat your property”.
[89] Ms Li verified that the audio record was of her and was not aware at the time the recording was made. She also did not recall the argument specifically. In her evidence in chief she said:
The reason I said this was Paul had asked about the prospect of his name being on the title. I considered this to be opportunistic on his part and I had reiterated that my parents had already said no to this idea. I said this out of anger and to humiliate him in the argument but knowing I was stating my parents’ position, which I knew to be clear.
[90] Mr Waalkens was critical of the way this transcript came to be included in the draft agreed bundle of documents.30 Prior to trial, he asked for disclosure of the full length recording from which the snippet was isolated. In response, Mr Locke provided a number of recordings and an explanation that the “... reason why there are a number of short recordings is that the app that [Mr Ogilvie] was using did not continuously record, but I gather only recorded when someone was speaking”.31 This meant that the only words recorded in this snippet were those set out in the transcript without any lead in or context.
30 The bundle of documents presented to the Court by the plaintiff was not an agreed bundle. The defendants filed a memorandum recording concerns regarding the agreed bundle of documents but did not seek any directions/orders. When I canvassed this with counsel at the start of the trial, Mr Waalkens, for pragmatic reasons, did not insist on documents being produced in the time- honoured way but reserved the right to record objections as the case proceeded.
31 Mr Ogilvie did not explain this when giving his evidence in chief. It only emerged later.
[91] The circumstances and manner of recording combined with the lack of immediate context leaves the Court in some difficulty. Ms Li suggested in cross- examination that she was “pulling his chain” in the heat of an argument, having recalled that Mr Ogilvie had asked this before and been rebuffed by her parents. Given that had been more than ten years earlier, I consider it more likely that a recurring theme in the relationship saw Ms Li leveraging untethered hope on Mr Ogilvie’s part that the defendants might one day gift the Property. Mr Ogilvie expressed a similar sentiment when he said (with the benefit of hindsight):
I would summarise the situation as being that when we were together in the house, and especially when things were on the ‘better’ side, in other words that Vickie was feeling appeased and happy, ‘we were lucky enough to have our own house in Auckland’. When things were at all rocky, it turned into ‘her parent's house’ and if I left ‘I would get nothing’.
[92] I conclude that while Ms Li from time to time (and when it suited) fanned Mr Ogilvie’s hopes of a future interest in the Property, this was not consistent. It falls short of creating a reasonable expectation or belief which could translate to a property interest even if Ms Li’s conduct could be said to affect her parents’ conscience, which it does not.
Did Mr Ogilvie reasonably rely on any representations or conduct to his detriment in circumstances where it would be unconscionable for the defendants to resile?
[93] Failure to fulfil an anticipated benefit or expectation is not by itself sufficient to create an estoppel.32 Mere disappointment from an unfulfilled promise is also insufficient. There needs to be some demonstrated harm, incurred or prospective, arising from the disappointed expectation. This requirement is also fatal to Mr Ogilvie’s claim. While his disappointment is real, the evidence before the Court does not support a finding of detrimental reliance. There was no realistic prospect of the couple purchasing their own property without assistance from the defendants given that the couple found it difficult to manage to meet day-to-day expenses. They did not have savings. Mr Ogilvie’s suggestion that they could have saved a deposit is not borne out by the evidence.
32 Doig v Tower Insurance [2017] NZHC 2997, [2018] 2 NZLR 677 at [44].
[94] Similarly, for the reasons discussed below, the “maintenance” that Mr Ogilvie carried out on the Property does not establish detrimental reliance.33
[95] In sum, the evidence does not show that Mr Ogilvie reasonably relied on any representations or conduct by Ms Li to his detriment. It has also not been shown that it would be unconscionable for the defendants to deny him any interest.
[96] The plaintiff’s claim under this head fails.
Constructive Trust
Did Mr Ogilvie make direct or indirect contributions to the Property?
[97] Mr Locke recognised the focus in a claim to a constructive trust is not on the benefits from Mr Ogilvie’s contributions which accrue to Ms Li personally or their family but the benefits accruing to the defendants as property owners. He argued however that it is artificial to distinguish between contributions to the Property and to the relationship when Ms Li will ultimately be the beneficiary of Mr Ogilvie’s contributions and sacrifices because it is "most plausible” that the Property will ultimately be hers.34 While that inference may be available, it is speculative. There is no evidential basis for it and it was not put to Ms Lee in cross-examination. I do not accept the submission that contributions to the relationship are relevant in the circumstances. Any direct and indirect contributions relied on have to be related to the Property rather than the relationship.35
[98] Mr Ogilvie relies on two categories of contribution. The primary category is the payments to the defendants which were applied (via Ms Li) to meet the monthly (and then fortnightly) mortgage instalments. I infer from the opening and closing balances of the outstanding mortgage that these payments covered both interest and principal thereby increasing the defendants’ equity in the Property.
34 Mr Locke suggested that this is not necessarily the focus in respect of the estoppel claim.
35 Lankow v Rose, above n 4, at 294.
[99] The parties dispute whether these payments should be characterised as rent or mortgage payments. Mr Waalkens submitted that the payment of rent or board is not a qualifying contribution. He relied on the decision of Hinton J in Moleta v Darlow in which she held that a constructive trust claim cannot be grounded on this sort of contribution since, among other things, the claimant would have needed to pay rent if she had lived elsewhere.36
[100] The second category of contribution was the carrying out of work and services on the Property. On this point, Mr Waalkens submitted that contributions of the type Mr Ogilvie relies are commonly seen as non-qualifying where they amount to no more than fair payment for board and lodging and the advantages of a home for the time being.37 Qualifying contributions must have added material, not simply cosmetic, value to the Property.
[101] Mr Locke argued that the payments to the defendants were almost entirely attributable to Mr Ogilvie’s income since Ms Li worked only part-time after the birth of their first child, earned approximately half of his income and spent her income on things other than the household. He submitted that the couple had increased the defendants’ equity as his payments reduced the mortgage on the house. At the same time, the Property was significantly increasing in value due entirely to market forces.
[102] The assertion that the payments by the couple to the defendants (predominantly from Mr Ogilvie’s income) which were then applied to reduce mortgage debt grounds a constructive trust claim is problematic.
[103] First, Ms Lee was resolute in her evidence that her daughter and Mr Ogilvie paid rent. Ms Li corroborated this. The relationship between the mortgage liability and the level of rent, does not convert rental into an assumption of mortgage liability. Although Mr Ogilvie thought he was paying the mortgage for the couple’s benefit, he is unable to point to anything from the defendants or Ms Li to show that they were operating on this basis or representing such.38 The couple did not assume legal
36 Moleta v Darlow [2021] NZHC 2016 at [95(a)].
37 Relying on Gillies v Keogh [1989] NZCA 168; [1989] 2 NZLR 327 (CA) at 334.
38 The absence of a formal tenancy agreement is explicable by the familial context.
responsibility for the mortgage although the monthly (and then fortnightly) payments were set by Ms Li at a level intended to cover the mortgage repayments. The various discussions between Ms Li and Mr Ogilvie about researching mortgage interest rates when the loans were due are not sufficient to show a de facto assumption of mortgage liability but are explicable given the relationship between rent and the defendants’ mortgage liability.
[104] Secondly, the payments do not manifestly exceed the benefits to him. While there was no reliable evidence about market rent, there was also no suggestion that the couple paid more than market rent. Mr Ogilvie produced a table based on his web research and a Barfoot & Thompson survey. He suggested based on this data that for the period 2009 to 2019, the average market rental in the relevant area for an average property was $563 per week. Relying on averages in this way potentially distorts the analysis. The more relevant comparator is what was paid versus what the market rent was at any given period if the Property was let to strangers or assuming reliable comparators.
[105] Mr Ogilvie suggested that his research showed that in 2004 the average rental for an average Auckland property would have been approximately $350 a week and in 2017, would have been about $550 a week. In June 2017, they were paying about
$244 per week, compared to the $550 per week average.39
[106] The obvious difficulties with Mr Ogilvie’s attempts to adduce this evidence mean that I cannot be satisfied that it is reliable.40 The best that can be said is that there is no cogent evidence that the couple ever paid more than market rental and there are indications that in the later years they paid significantly less. Mr Ogilvie accepted this on cross-examination. It follows that the couple received a benefit from living in the Property.
[107] The Li schedule appears to corroborate the proposition that the couple did not pay market rent if Mr Ogilvie’s research was relied on although it is not entirely clear how payments for insurance, rates and water charges are accounted for.41
[108] The Li schedule is more consistent with Mr Ogilvie’s point that the payments they made were set at an amount required to meet mortgage repayments without any attempt to fix payments at a market rent. He said that the fact that the amounts paid went down over time helped to embed his belief that they were homeowners paying outgoings and not renters but in my assessment, the familial context may also explain the link between mortgage repayment obligations and rent to be paid.
[109] Thirdly, if the couple did not live in the defendants’ house, they would have been paying rent to third parties for accommodation on an arm’s length basis. Mr Ogilvie agreed on cross-examination that he had the “good fortune” to live at the Property. The counterfactual that Mr Locke proposed—that Mr Ogilvie would only have had to pay rent elsewhere as a single man—is artificial. Any suggestion that they would otherwise have been living in their own home and not paying rent is also unrealistic for the reasons already set out in [93] above.
[110] Fourthly, but less significantly, the plaintiff overlooks that between 2004 and 2008, there were other flatmates paying rent. On his analysis, their contributions would need to be accounted for.
[111] The secondary category of contribution relied on is the performance of work and services. Mr Locke accepted in closing submissions that the following work and services pleaded constituted only minor “improvements” but ought to be seen as preserving value of the Property:
(a) installation of new cabinets in the laundry, salvaged off a job site;
(b) fixing of a leak in the laundry roof;
(c) re-hanging the laundry door;
(d) installation of and payment for a new hot water cylinder;
(e) installation of and payment for a new waste disposal unit;
(f) fitting smoke alarms;
(g) installation of fibre-cabling;
(h) repair of toilet;
(i) mowing lawns and maintenance of grounds;
(j) repair of rotting weatherboards;
(k) repainting exterior cladding and fascia;
(l) fixing leaking flat roof and repainting;
(m) repainting the garage door;
(n) repainting the interior of the house except for the laundry, kitchen and downstairs bathroom;
(o) installation of new front door;
(p) replacement of all curtains;
(q) adjusting ground levels which were too high relative to the house and some landscaping;
(r) replacement of garage door control and several remote controls;
(s) replacement of door handles;
(t) replacement of window hinges;
(u) installation of new glass in laundry door;
(v) replacement of window stays;
(w) installation of bolt on the deck gate;
(x) purchase of a new letter box;
(y) replacement of several electrical switches;
(z) installation of kitchen extractor fan;
(aa) payment of share of cost of new shared fence adjacent to the driveway;
(bb) water blasting of deck;
(cc) installation of new laundry sink tapware; (dd) installation of water filter faucet in kitchen; (ee) replaced television aerial;
(ff) fixed leak in bath; and
(gg) installed fly screens on all windows;
[112] Mr Ogilvie estimated in his brief of evidence that he and Ms Li spent a total of between $7,000 to $8,000 on building materials, tradesmen, garden items, and built- in appliances for the Property during their relationship. This does not include anything for Mr Ogilvie’s labour.
[113] Ms Li does not deny these works apart from disputing who paid for the new hot water cylinder. Her evidence is that her parents paid for this. Her mother corroborated this. No receipts or other supporting documentation were produced in
evidence but Ms Li was unshaken in her recall and said they could not have afforded the hot water cylinder themselves. She also said that the familial arrangement was that basic maintenance was to be undertaken by the couple.
[114] The difficulty is the generality and inadequacy of the evidence. No details were provided. No receipts were produced.42 It emerged that a schedule that Mr Ogilvie had prepared itemising the expenditure had been omitted from the evidence in error. I allowed Mr Ogilvie to produce this schedule over Mr Waalkens’ objection since the error had not been of Mr Ogilvie’s making.43 The schedule did not advance the plaintiff’s case. The estimated total was quite a bit less than the $7,000 to $8,000 referred to in Mr Ogilvie’s brief. The nature of much of the work carried out was largely what might be expected of someone living in a property owned by family and paying less than market rental. This is not the type of contribution which would warrant serious consideration of a beneficial interest.44 The nature and extent of those contributions do not justify an entitlement to a beneficial interest in the Property.
[115] To meet the criteria for a constructive trust in this context, the contributions must manifestly exceed any benefits. The couple had the advantage and security of living in the Property paying, at least for a substantial time, less than market rent. The contributions relied on by Mr Ogilvie do not on the evidence available meet the threshold required. The claim to constructive trust fails at this hurdle also.
Was it reasonable for Mr Ogilvie to expect an interest in the Property?
[116] Any expectation Mr Ogilvie has in the Property can only be a product of Ms Li’s conduct in the circumstances of this case.
42 The lack of detail likely reflects the historical nature of many of the items.
43 Mr Waalkens’ objection was fairly made. As soon as it emerged that the document had been omitted in error assurances were given to Mr Waalkens that a copy would be provided. In the end, it was only provided to Mr Waalkens at the commencement of the next day’s session leaving Mr Waalkens with only a short time to prepare cross-examination. Nonetheless, I considered there was no prejudice to the defendants for the reasons discussed in the judgment.
44 This is even taking into account on a generous view that Mr Ogilvie did not include in his estimates any labour cost or real cost of materials which he was able to obtain at no cost from sites he worked on.
[117] As already discussed in [68]–[92] above, the defendants did not create an expectation of an interest in the Property, nor did Ms Li create one with actual or ostensible authority. My findings as to the lack of significance of the contributions in all the circumstances means that it is not reasonable for Mr Ogilvie to expect an interest in the Property on the basis of those contributions.
[118] In my assessment, drawing an analogy with cases such as Murrell where a co- trustee is taken, along with their co-trustee, to have stimulated a reasonable expectation by dint of abdicating his or her responsibilities to the co-trustee/partner is not apt in this case. The defendants did not practically surrender their ownership role to Ms Li. The practical reality is that the provision of PoAs to Ms Li did not go nearly so far and Mr Ogilvie accepts he was well aware of this fact.
[119] I find that Ms Li’s attitude waxed and waned when it came to the prospect of being gifted the Property in the future. It seems that her loyalty to her parents outweighed her loyalty to her husband during the marriage as can be seen in the omission to tell Mr Ogilvie that the mortgage liability had been reduced by her parents’ payment. However, it does not follow that it was reasonable for Mr Ogilvie to expect an interest when he knew the property was her parents’ and he knew the limited scope of her authority.
Should the defendants reasonably expect to yield Mr Ogilvie an interest?
[120] No. There is no evidence that the defendants were aware of the extent of Mr Ogilvie’s contributions towards maintenance of the Property (such as they were) and they were not disproportionate to the benefit of living in the Property. This aspect of the claim does not merit the Court’s intervention either.45
Outcome
[121] The plaintiff has not made out the required elements for a constructive trust or equitable estoppel. Accordingly, I dismiss his claim.
45 See Blumenthal v Stewart [2017] NZCA 181, [2017] NZFLR 307 at [53].
Costs
[122] Ordinarily the defendants would be entitled to cost on a category 2B basis. If costs need to be determined, they will be dealt with on the papers. A memorandum is to be filed within 14 working days of this judgment. Any memorandum in response is to be filed and served within a further seven working days. A memorandum in reply (if any) should be filed and served within three working days. No memorandum should exceed three pages plus schedules.
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