Winslow v Pikett [2016] NZHC 329 (2 March 2016)

Last Updated: 29 December 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-002886 [2016] NZHC 329

UNDER	Section 145A of the Land Transfer Act 1952
IN THE MATTER	of an application that Caveat 9738027.1 not lapse
BETWEEN	STEPHEN BRETT WINSLOW Plaintiff
AND	MARY CHRISTINE PIKETT, ANTHONY CHRISTOPHER EDWARD AND CHRISTOPHER PATRICK HUNT Defendants

Hearing:	2 March 2016
Appearances:	P Kennelly for the Plaintiff J Strauss for the Defendants
Judgment:	2 March 2016

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

S B WINSLOW v M C PIKETT, A C EDWARD AND C P HUNT [2016] NZHC 329 [2 March 2016]

[1] Mr Winslow registered a caveat over the defendants’ property on 26 May 2014.

[2] The caveat interest claimed was of a:

...beneficial interest in the land as cestui que trust of which the registered proprietors are the trustees. The claim arises from work and or betterment to the property undertaken by the claimant as a builder and husband while in a marriage to Mary Pikett (aka Winslow) the daughter of the registered proprietor Mary Christine Pikett as to a half share and the deceased Neil Howard Pikett for whom the other registered proprietors Mary Christine Pikett, Anthony Christopher Edward, and Christopher Patrick Hunt are registered as executors as to the remaining half share.

[3] By his affidavit in support Mr Winslow explains the property in question was bare land until an old villa was moved onto it in 1997 to provide a home for Mr Winslow’s former wife (Mary) and their children. Mr Winslow and Mary separated in 1995. Mary and the children lived in the house. Mr Winslow refers to there being a second separation about 10 years later. Mary is firm that they have lived apart since 1995.

[4] At that time in 1997 the owners of the land (Mary’s parents) secured a loan of
$120,000 to pay for the villa and for its delivery.

[5] Mr Winslow says he is a builder and from the time Mary was in occupation of the home he:

[4] ...Put in a septic tank, a water tank and a garage and added a large deck to the house which was 9 metres long and 3 metres wide plus some stairs. I did all the foundations, piles and bearers for the deck. I added French doors, purchased a new fire and extended out some of the walls and replaced sashes and the front deck. There was a lot of work undertaken to the home. I did the drainage under the supervision from my cousin. I have a record of all the work I have undertaken to the property.

[6] In a second affidavit Mr Winslow provides a more detailed account of his building work which he calculates took him a total of 108 days.

[7] Mary says no work has been done on the house by Mr Winslow since 1999. Mr Winslow does not dispute this.
[8] Mr Winslow believes the property to be worth a lot more than its current capital value of $485,000 of which the land value comprises $280,000.

[9] Mr Winslow says Mary has never wanted to resolve property matters with him and she has taken the view the property is owned by her mother and her late father’s estate and that Mr Winslow has no claim to the home.

[10] Mr Winslow estimates the value of his labour to the renovation is $37,800. Also he says he spent $5,000 for the ensuite that was installed by his brother early in 2015.

[11] The application is opposed.

[12] Mary deposes that since she and Mr Winslow separated she has had custody of their children. Initially she and the children stayed with her parents in their house. She said there were discussions in 1995/96 regarding the possibility of building a house on an adjacent lot owned by her parents for her and the children to live in. Her parents were agreeable to this. Mr Winslow offered to help.

[13] Mary worked for the Relocatable House Company. Her parents guaranteed her borrowings and provided the property as security.

[14] Mary says that Mr Winslow did not make any contribution to mortgage payments and nor did he pay for major purchases of materials. All that Mr Winslow contributed was some labour.

[15] Mary says the house was eventually made habitable and she and the children moved in but that the building work has not been completed and a code compliance certificate has still not issued.

[16] In a reply affidavit Mr Winslow provides significant detail regarding the extent of work he says he undertook on the property.

[17] Mr Winslow says he did some work on the property in terms of an oral agreement with Mary’s father. There is a dispute regarding the extent of payment
made to Mr Winslow for this work. There is a dispute regarding the extent to which Mr Winslow may have contributed to the cost of materials purchased. It was the position of Mary and her parents that Mr Winslow agreed to do some work for the sake of his children and in lieu of paying maintenance.

Considerations

[18] The Court should not remove a caveat unless it is clear that such cannot be maintained because there was no valid ground for lodging it.

[19] If there is a dispute between the parties regarding evidence critical for the Court’s consideration of a claim of caveatable interest then the Court’ usual practice is to let the caveat remain until the parties’ issues can be resolved at a trial.

[20] Mr Kennelly submits there is no immediate need for the caveat to be removed and that he should be given time to file his claim in reliance upon the trust identified by his caveat. The evidence is that although Mr Winslow’s marriage was dissolved in April 2014, he and Mary have lived apart for 22 years.

[21] He says his interest is by way of constructive trust or an implied or resulting trust. The amount he is entitled to he says is that which is due once claims of betterment and quantum meruit have been quantified.

[22] The claim of registerable interest is founded on Mr Winslow’s belief he is owed money for work and labour done on the house in 1999 and for improvements he said he funded in 2015.

[23] Mr Winslow needs to convince this Court he has an arguable claim of an interest; and that his contributions clearly exceed the benefit provided. At the time he had an obligation to contribute to the care of his children.

[24] The property was owned by Mary’s parents. They funded an arrangement that provided them with a home after May and Mr Winslow separated. This claim if it has credibility has taken more than 20 years to be made,
[25] There is little if anything at all to that gives rise to a claim of a constructive trust or that should suggest equity should interest to require Mary’s parents to reward Mr Winslow for those events long since past. Claims of an expectation of an interest have taken more than 20 years to emerge. His evidence falls far short of showing an expectation of an interest in the property in question.

[26] In this account of matters claims of a remedial constructive trust emerge, although briefly but not sufficiently to sustain a caveatable interest. Mr Winslow’s recourse is remedial and nothing in that suggests a sustainable claim of an enduring (institutional) interest in the land.

[27] If Mr Winslow has a remedial claim he should file it but he has not done this yet even though he has had more than 20 years to do so.

Summary

[28] It is clear that Mr Winslow’s claims of a caveatable interest cannot succeed. They do not provide him with a registerable interest. His remedy if any is to sue for payment of what he says is owed to him. Clearly no claim of any value in the property concerned is available to him.

Judgment

[29] The application to sustain the caveat is dismissed.

[30] The applicant shall pay the defendant’s costs on a 2B basis.

Associate Judge Christiansen