Jones v 74 Albert Street Ltd

• Jurisdiction: New Zealand
• Judge: Glazebrook,Wild,White JJ
• Judgment Date: 14 February 2012
• Neutral Citation: [2012] NZCA 11
• Docket Number: CA726/2011
• Court: Court of Appeal
• Date: 14 February 2012

BETWEEN

Cecelia Elizabeth Jones

Applicant

and

74 Albert Street Limited

Respondent

[2012] NZCA 11

Court:

Glazebrook, Wild and White JJ

CA726/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

Application for extension of time to appeal against High Court judgment ordering removal of a notice of claim over property — applicant pursuing relationship property claim in Family Court for division of assets — property registered in husband's name — applicant's protected interest under s s20B Property (Relationships) Act 1976 (PRA) (protected interest in family home) limited — creditors had obtained orders for sale and for removal of notice of claim — delay of 41 days in filing application explained by inability to raise funds to pursue appeal — whether delay in filing the appeal out of time was sufficiently justified on ground of inability to raise funds — whether the applicant's entitlement to a protected interest over the property justified the plea for extension of time.

Counsel:

W T Nabney for Applicant

S J Corlett for Respondent

• A The application for an extension of time to appeal is dismissed.

• B The applicant must pay the respondent costs for a standard application on a Band A basis with usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by White J)

Introduction

1 Mrs Jones applies under r 29A for an order granting an extension of time to appeal against a judgment of Associate Judge Doogue in the High Court at Tauranga on 23 August 2011 ordering the removal of a notice of claim by Mrs Jones under s 43 of the Property (Relationships) Act 1976 (the Act) over her husband's farm property (the property). 1

Background

2 Mr and Mrs Jones live together on the farm property which is registered in his name. The property, which had an estimated value of $820,000 in February 2011, is subject to a mortgage to Westpac of approximately $450,000.

3 In 2006, apparently without his wife's knowledge, Mr Jones contracted with 74 Albert Street Ltd (74 ASL) to purchase three apartments, but failed to settle the purchases. In August 2010 74 ASL issued summary judgment proceedings against Mr Jones in the Tauranga High Court.

4 Before the summary judgment proceeding was determined, Mrs Jones registered her notice of claim over her husband's property on the basis of her marriage to him.

5 In December 2010 74 ASL obtained summary judgment against Mr Jones for $610,246.95 and subsequently a final charging order over Mr Jones property for that amount.

6 In February 2011 Mrs Jones declined 74 ASL's request that she remove her notice of claim.

7 In March 2011 Mrs Jones commenced Family Court proceedings seeking a number of orders, including an order for the division of the parties' relationship

property “so as to achieve a just division of their property” in accordance with the Act and an order that she occupy the family home on the property

8 In April 2011 74 ASL applied to the High Court for the removal of Mrs Jones's notice of claim over the property. After a defended hearing, Associate Judge Doogue granted the application because to allow the notice to remain on the title would be of “no practical utility”. The Associate Judge's reasons for this conclusion were:

• (a) Under s 20B of the Act Mrs Jones's protected interest in her husband's property was $185,000, being half of the difference between the value of the property and the mortgage debt to Westpac.

• (b) On the assumption that Mrs Jones could seek an order for possession of the property, the utility of making such an order would depend on whether she had any long-term prospect of securing it.

• (c) Taking into account the amount of 74 ASL's judgment against Mr Jones, it was very doubtful that Mrs Jones as a retired superannuant would be able to arrange that level of funding and thereafter service the required borrowings.

• (d) While Mrs Jones had considerable merit on her side because she was not told about the circumstances in which her husband entered into the agreement with 74 ASL, it was unlikely that the rights of 74 ASL, as the creditor, under s 20A of the Act could...