Chapman as Trustee of the Gallagher Rabson Family Trust v Casino Properties Limited [2012] NZHC 250 (8 February 2012)

High Court of New Zealand

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Chapman as Trustee of the Gallagher Rabson Family Trust v Casino Properties Limited [2012] NZHC 250 (8 February 2012)

Last Updated: 23 March 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-162 [2012] NZHC 250

IN THE MATTER OF Section 143 of the Land Transfer Act 1952

BETWEEN WAYNE SEYMOUR CHAPMAN AS TRUSTEE OF THE GALLAGHER RABSON FAMILY TRUST

Applicant

AND CASINO PROPERTIES LIMITED First Respondent

AND ALAN FREDERICK POPE AND MALCOLM EDWARD RABSON Second Respondents

AND MALCOLM EDWARD RABSON Third Respondent

Hearing: 7 February 2012

Counsel: S Barker and N Whalley for Applicants

No Appearance for First Respondent

M E Rabson In Person for Third Respondent

Judgment: 8 February 2012

_{JUDGMENT OF SIMON FRANCE J}

Introduction

[1] This application concerns a property at 21 Sunset Parade, Plimmerton. It is subject to an unconditional agreement for sale and purchase, to be settled on

10 February 2012. On 26 January the registered proprietor was given notice by

LINZ of caveats lodged against the title by each of the three respondents. The caveats had been lodged 2 December 2011.

WAYNE SEYMOUR CHAPMAN AS TRUSTEE OF THE GALLAGHER RABSON FAMILY TRUST V CASINO PROPERTIES LIMITED HC WN CIV 2012-485-162 [8 February 2012]

[2] An unusual aspect is that the property in issue has already been the subject of considerable relationship property litigation between Mr Rabson and his former partner, Ms Gallagher. The Court of Appeal issued judgment on 15 September but called for further submissions as to orders. These were made on 20 December 2011, subsequent to the lodging of the caveats which were not seemingly brought to the Court’s attention.

[3] The Court of Appeal made specific orders that the caveated property at

21 Sunset Parade was to be sold by the trustee proprietor

without regard to the renovations carried out by Mr Rabson.

[4] This order followed on from a passage in the judgment in which the Court notes Mr Rabson’s failure to provide evidence of these matters either at the High Court or in the Court of Appeal.

[5] The trustee has sold the property in accordance with the judgment. He wants to be able to settle it Friday so needs the caveats removed. The second and third respondents are obviously connected to Mr Rabson, who was a party to all the litigation. He is also one of two shareholders in Casino Properties Limited, the other shareholder being Mr Pope. With that background, I turn to the application to remove the caveats.

Caveats

[6] Casino Properties Limited describes its interest as $115,782.88 “for

improvements made to the property”.

[7] Alan Pope and Malcolm Rabson, as trustees of the Malcolm Rabson Family

Trust, claim $197,999.07 for improvements made to the property.

[8] Malcolm Rabson claims, in his own name, for $250,001.16 for contributions to the purchase of the property.

[9] Casino Properties Limited noted, when lodging the caveat, that its address for service was 4-10 Hautonga Street, Petone, New Zealand. That is also its registered office.

[10] When the applicant tried to effect service there, it found a vacant office and warehouse. The sole director of Casino Properties Limited is Mr Peter Allan Collins who signed the caveat. The applicant’s evidence advises that when he contacted Mr Collins, he was told that Mr Collins would be at 5 Ballina Drive until midday. That was found to be a non-existent address.

[11] Mr Collins was then again contacted, this time on a mobile phone number which was listed with the Companies Office. Mr Collins advised the applicant’s counsel that the papers could be filed at 153 Main North Road, SH 1, Paraparaumu. That is also the address for service for the second and third respondents. A process servicer was dispatched. The property gates were locked, and the contact cell phone number listed on the gate had been allocated to a new subscriber unconnected to the property. The documents were left in the mail box. This is, in my view, proof of service.

[12] Turning to the other two respondents, Mr Rabson is common to them both. Due to what seems to be an error in the Registry, the second respondents were described to him as being the trustees of a Gallagher Rabson Family Trust. That is not correct and does not stem from the applicant’s papers. Mr Rabson, however, acting on that misunderstanding, filed papers to show he and Mr Pope were not trustees of that Trust.

[13] However, the caveats he had lodged listed the Main North Road address as the address for service for both “these” respondents, and the evidence establishes that service was effected there. In addition, on 1 February another set of papers were given personally to Mr Rabson.

(a) Abridgement of time

[14] I am satisfied service has been effected on all three respondents and that the parties were aware of the application in sufficient time to defend the application today. It is a straight forward matter, and the applicant has not delayed once advised of the caveats. I accordingly abridge the necessary timeframes and proceed to consider the matter.

(b) Casino Properties Limited

[15] No appearance was registered. Mr Collins’ actions, as established by the applicant’s evidence, were evasive, but it is clear that he knows of the hearing and chose not to obtain representation. This is reinforced by two matters:

(a) Mr Rabson advised he spoke to him about it on Sunday;

(b) the applicant sent a text to Mr Collins, to the phone on which he had previously spoken to Mr Collins, setting out the details of the hearing.

[16] The first respondent’s non-appearance means no basis is advanced by it to support the caveat.

[17] At the hearing Mr Rabson proffered a letter, on Casino Properties Limited letterhead, in which Mr Collins purports to appoint Mr Rabson to act on the company’s behalf. That is not permitted.[1] I declined Mr Rabson permission to speak

_{for the company.}

[18] Mr Rabson was present. As noted, he said he believed the Gallagher Rabson Family Trust were the second respondent so had not discussed matters with Mr Pope who was in Australia. However, I have held the trustees to have been properly served, and again no evidence has been proffered in support of the second respondent’s caveat.

(d) Mr Rabson

[19] Mr Rabson opposed abridgement and the lifting of the caveats. He wanted time to obtain legal advice. He did not proffer any argument contrary to the propositions that the caveats were in conflict with the orders of the Court of Appeal. He sought to rely on his claim to a right to occupy the property which he has filed with the Tenancy Tribunal and which has a hearing in March. However, such a claim cannot withstand the clear orders of the Court of Appeal in relation to the property.

(e) Conclusion

[20] Mr Rabson has filed an appeal to the Supreme Court. Timetabling has been imposed by that Court for the leave hearing. Until that has been determined, I consider Mr Rabson is entitled to a level of protection as regard the proceeds.

[21] However, as regards sale of the property, there is an unequivocal order of the Court of Appeal that the trustee sell the property. That specific order is not the subject of the leave to appeal application. Further, the matters which underlie the caveats have not been articulated or made the subject of evidence, and no attempt has been made to separate what underlies them from the matters in issue in the preceding litigation. In others words no basis has been advanced to suggest the caveats protect matters that are genuinely separate from what should have been addressed in that litigation. Finally, the existence of the unconditional contract means that there are third parties who will be affected if the sale is blocked.

[22] The position of the caveating parties can be sufficiently preserved by an order placing the proceeds in trust. The withholding of funds will last only until Mr Rabson’s application for leave to appeal to the Supreme Court has been determined.

[23] Concerning the expense of the trustee, he is acting pursuant to Court of Appeal direction, and is entitled to payment regardless of the outcome of the appeal. Accordingly, he will be authorised to take his payment out of the proceeds.

[24] Finally, I am aware that Ms Gallagher has entered into an agreement to purchase a property in anticipation of receiving the proceeds of sale. That agreement is dated 13 December 2011 so pre-dates the final orders of the Court of Appeal. She will need to apply on notice to vary the orders made here.

Orders

[25] Caveats X8939666.2, X8939666.4 and X8939666.5, registered against the Title WN 384/166 and in the names of Casino Properties Limited, Alan Frederick Pope and Malcolm Edward Rabson, and Malcolm Edward Rabson, respectively, are ordered to be removed from the Register.

[26] The proceeds of the sale of 21 Sunset Parade, Plimmerton, are to be held in trust on interest bearing deposit by Buddle Findlay Solicitors pending the outcome of the application by Mr Rabson for leave to appeal to the Supreme Court. If that application is unsuccessful, the funds may be released unless there is a further order of this Court, or any higher Court.

[27] The trustee, Mr Chapman, is entitled to first set aside money to meet reasonable past and future costs and expenses as set out in order C(a)(ii) of the Court of Appeal orders.

[28] Costs on this application are reserved pending the determination of the

_{Supreme Court leave decision.}

_{Simon France J}

Solicitors:

S Barker, Buddle Findlay, Wellington

M E Rabson, Wellington

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[1] Re G J Mannix Ltd [1984] 1 NZLR 309 (CA).