Kemp v Gillanders CA269/97 [1998] NZCA 257 (16 March 1998)

Last Updated: 14 December 2021

Richard James Kemp v Sian Gillanders

_{Status Court of Appeal Judgments (Archive)}

Court of Appeal

CA269/97

16 Mar 1998

Richardson P - Gault J - Henry J

Appellant: Richard James Kemp Respondent: Sian Gillanders Judgment by: Richardson P

Coram No.: 3

Appellant's Counsel: J J G Hitchcock

Respondent's Counsel: C J O'Neill

Filing date: 1 Dec 1997

Hearing Year: 1998

Judgments: CA26997

Appeal - application for leave - s67 Judicature Act 1908 - claim to constructive trust in house following break - up of de facto relationship - argument that High Court did not properly apply relevant principles to facts of case - leave refused.

IN THE COURT OF APPEAL OF NEW ZEALAND CA 269/97

BETWEEN RICHARD JAMES KEMP Applicant

AND SIAN GILLANDERS Respondent

Coram: Richardson P

Gault J

Henry J

Hearing: 16 March 1998

Counsel: J J G Hitchcock for Applicant

C J O'Neill for Respondent

_{Judgment: 16 March 1998}

_{JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P}

This is an application under s67 of the Judicature Act 1908 for leave to appeal to this court against a determination

of the High Court on appeal to that court from the District Court.

Following the break up of a de facto relationship of some two years' duration Mr Kemp claimed an interest by way of constructive trust in a property acquired in Ms Gillanders' name on which a house was built and completed around the time the relationship ended. On 18 February 1997 District Court Judge Everitt upheld the claim and fixed the amount of Mr Kemp's interest at $24,440. On 5 November 1997 Hansen J allowed Ms Gillanders' appeal and dismissed the claim. On 27 January 1998

Page 2

Hansen J refused leave to appeal. In doing so he recorded that his own judgment allowing the appeal from the

District Court had applied the principles set out in Gillies v Keogh [1989] NZCA 168; [1989] 2 NZLR 327 and Lankow v Rose [1995] 1

NZLR 277, particularly the objective assessment of reasonable expectation, and that he had reversed the District Court Judge by taking into account the whole of the period of the relationship and the contributions, both direct and indirect, of the parties during the whole of the relationship, whereas the District Court Judge had focussed on the later period of the relationship.

In supporting the application for leave to appeal Mr Hitchcock submitted that Hansen J erred in not properly applying the principles established in Gillies v Keogh and Lankow v Rose to the facts of this case and, in particular, that he erred in considering aspects of the nature of the relationship between the parties and quantification questions in determining whether reasonable expectations were engendered by contributions to the asset. However, the consideration of the making of contributions cannot be seen in a vacuum divorced from the

reasonable expectations. In short, the matter has to be looked at globally.

Leave to appeal is not granted as of course, or wherever it may be argued that on the appeal to the High Court the Judge erred in a factual assessment or in the application of legal principle. We are not persuaded that there is any issue arising in the judgment of Hansen J warranting granting leave for further appeal to this court.

The application is accordingly dismissed with costs in favour of Ms Gillanders in the sum of $1,500 together with all reasonable disbursements including the travel and any accommodation expenses of counsel as fixed, if necessary, by the Registrar.

Solicitors:

_{Macalister Todd Phillips Bodkins, Queenstown, for applicant}

Appellant's Counsel: J J G Hitchcock

Respondent's Counsel: C J O'Neill

End of Document