Brother and sister Ivan Erceg and Vinka Sain each claim ownership of an Auckland Epsom property on Withiel Drive with a rating valuation of $5.7 million previously occupied by their late mother, Millie. Ivan says he inherited under his mother’s will; Vinka says it was never Millie’s to give away, it was held in trust for her.
Withiel Drive was purchased by their sibling Michael in 2004, for $1.7 million. The following year, Michael died tragically in a helicopter accident. He died a wealthy man, after sale of Independent Liquor at a price rumoured in excess of one billion dollars.
Circumstances surrounding purchase of Withiel Drive played out in the High Court after Millie’s death in 2019. Michael put up the cash for purchase of Withiel Drive in 2004, with title put in name of his mother Millie. Vinka says her brother Michael made it clear at time of purchase that ownership passed to her on Millie’s death. There is evidence supporting this: conversations Michael had with Vinka, her husband, their son and a builder who carried out renovations on Withiel Drive together with comments made by Millie herself when alive. Vinka says that while title to Withiel Drive was in Millie’s name, Millie held the property in trust for her.
An initial court hearing saw argument over technical legal issues.
Without directly challenging evidence of a trust, Ivan claims any trust over Withiel claimed by Vinka is not enforceable. Recent rules in the Property Law Act 2007 require a trust involving land to be in writing and signed by the person creating the trust. There was no document signed by Michael creating a trust over Withiel Drive. Associate judge Bell said the new rules did not apply; Withiel was purchased in 2004, before the 2007 rules came into effect. The Limitation Act 2010 requires claims for breach of trust to be filed within three years of any breach. Associate judge Bell said there are no time limits where the complaint is that a trustee wrongly converted trust assets to their own use. There was no legal bar on Vinka bringing her claim for breach of trust.
Ivan was ordered to file a formal statement of defence.
Sain v. Erceg – High Court (14.04.21)
21.069