| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA730/2015 [2019] NZCA 26 |
| BETWEEN | JANFERIE MAEVE ALMOND |
| AND | BRUCE JAMES READ |
| Hearing: | 29 August 2018 |
Court: | Winkelmann, Duffy and Peters JJ |
Counsel: | S I Perese for Appellant |
Judgment: | 1 March 2019 at 12 pm |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant must pay the respondents one set of costs for a standard appeal on a band B basis.
____________________________________________________________________
REASONS OF THE COURT
(Given by Winkelmann J)
Table of Contents
| Para No. | |
| Introduction | [1] |
| Background facts | [8] |
| Arrangements to purchase Ms Almond’s account | [11] |
| Bruce Read’s account | [15] |
| Mrs Read’s account | [19] |
| Chris Read’s account | [21] |
| Settlement | [27] |
| Construction of dwellings | [28] |
| Garage and purchase of R’s share in the Property | [32] |
| Payments by the respondents toward mortgage and outgoings Bruce Read | [35] |
| Mrs Read | [39] |
| Chris Read | [41] |
| Further borrowing by Ms Almond | [45] |
| The judgment | [46] |
| Bruce Read | [52] |
| Mrs Read | [54] |
| Chris Read | [57] |
| Ms Almond | [59] |
| The law | [61] |
| Arguments on appeal | [73] |
| First ground of appeal: the finding of common intention | [80] |
| The solicitor’s file notes | [83] |
| Mr and Mrs Reads’ letter to the Franklin District Council | [94] |
| Mrs Read’s will of 9 June 2010 | [100] |
| Was there sufficient credible evidence to justify a finding of common intention? | [106] |
| Chris Read’s payment of the mortgage | [119] |
| Other difficulties with this ground of appeal | [125] |
| Differing narrative | [126] |
| Ms Almond’s credibility | [128] |
| Second ground of appeal: constructive trusts | [135] |
| Third ground of appeal: breach of fiduciary duty | [138] |
| Analysis | [141] |
| Costs | [147] |
| Result | [154] |
Introduction
The parties dispute the basis upon which a rural property in Drury South Auckland (the Property) was bought and developed, and the basis on which it is owned. The parties are all members of one family. The appellant, Ms Almond, is the sister of Bruce and Christopher Read and the daughter of Mrs Ethne Read — the latter three, the respondents.
Although Ms Almond is the sole registered proprietor of the Property, the respondents allege they helped pay for the Property and the construction of the two houses now on it (one for Ms Almond and one for her parents, Mrs Ethne and Mr Fred Read). They allege these contributions were made pursuant to an agreement that each of the parties would have a beneficial interest in the Property proportionate to their respective financial contributions. The respondents say Ms Almond holds title in the Property as constructive trustee for their individual interests and nominated shares. Mrs Read further alleges that Ms Almond misused an enduring power of attorney that she had under the Protection of Personal and Property Rights Act 1988 in respect of Mrs Read, misapplying Mrs Read’s funds for her own personal benefit.
In the High Court, Ms Almond maintained that…
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- AGLC
- Almond v Read [2019] NZCA 26
- Case
- [2019] NZCA 26
- Decision Date
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Orders
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Background
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Evidence
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