Kainuku v Smith [2014] NZHC 766 (14 April 2014)

Last Updated: 8 May 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5560 [2014] NZHC 766

BETWEEN	TEAROA TEINAKORE KAINUKU Plaintiff
AND	PUNA LOVENE HOPE SMITH and ESTATE OF JOHN DANIEL GREENE First Defendants WESTPAC NEW ZEALAND LIMITED Second Defendant

Hearing:	14 April 2014
Appearances:	M McFarland for plaintiff No appearance for defendants
Judgment:	14 April 2014

(ORAL) JUDGMENT OF LANG J [on formal proof]

KAINUKU v SMITH [2014] NZHC 766 [14 April 2014]

[1] The first-named first defendant, Ms Puna Smith, and her late husband, John Daniel Greene, are the registered proprietors of two properties situated at 20 Tindall Crescent, Otara and 26 Rapson Road, Otara respectively.

[2] In this proceeding Mr Kainuku seeks declarations that they hold title to both properties on trust for him. He also seeks an order directing the transfer of those properties to him. Neither defendant has taken steps to defend the proceeding. For that reason the hearing has proceeded today by way of formal proof based on affidavits previously filed.

[3] Mr Kainuku was formerly the owner of 20 Tindall Crescent. On 11 April

2008, he entered into an agreement to sell that property to the defendants for the sum of $270,000. Ms Smith signed the agreement on Mr Kainuku’s behalf as vendor using a power of attorney that she evidently held at that time. Mr Kainuku himself was unable to deal with these issues because he was at that time serving a sentence of imprisonment.

[4] After Mr Kainuku was released from prison, he entered into an agreement to purchase the property at 26 Rapson Road, Otara. He nominated the defendants to take title to that property notwithstanding the fact that they did not contribute to the purchase of it. Mr Kainuku provided the deposit and obtained funding from the Westpac Banking Corporation to finance the balance of the purchase.

[5] On 3 October 2012, after Mr Greene’s death, Ms Smith and Mr Kainuku entered into a deed in which they set out their agreement as to the situation relating to both properties. The operative provisions of the deed were as follows:

1. Puna acknowledges she and her late husband hold the properties as trustees for Tearoa.

2. Puna agrees to forthwith execute all documents necessary to transfer title to Tearoa, or his nominee. Tearoa acknowledges the mortgage

registered against the titles to the properties will be discharged on settlement.

3. Puna undertakes to forthwith take all steps necessary to obtain letters of administration of her late husband’s estate so that all necessary documents can be executed by her late husband’s administrator to give effect to this deed.

4. Neither party has any further claim against the other arising out of the transfer of the properties to Puna and her late husband, or their transfer to Tearoa or his nominee pursuant to this deed.

5. Costs in the proceedings are to lie where they fall.

[6] Despite executing the deed, Ms Smith has taken no steps to obtain letters of administration of her late husband’s estate and has taken no other steps to effect the transfer of the properties into Mr Kainuku’s name. For that reason it has been necessary for Mr Kainuku to seek the assistance of the Court.

[7] Given the terms of the deed dated 3 October 2012, I have no doubt that Ms Smith and her late husband held the property on trust for Mr Kainuku. On that basis, I make the declaration sought by Mr Kainuku in his first amended statement of claim. I also make an order directing the transfer of both properties into Mr Kainuku’s name. In the event that Ms Smith fails to sign all documents necessary to effect these transfers within seven days of being asked to do so, I direct that the Registrar of the High Court at Auckland is to sign any documents necessary to complete the transfer of the properties into Mr Kainuku’s name.

Costs

[8] Mr Kainuku is entitled to an award of costs against Ms Smith. Those costs are to be calculated on a Category 2B basis, together with disbursements as fixed by

_{the Registrar.}

Lang J

Solicitors:

Law & Associates, Manukau City