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Almond v Read

Almond v Read

Case [2019] NZCA 26 1 March 2019

Constructive Trust

Unjust Enrichment

Implied Terms

Contribution to Purchase Price

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA730/2015
[2019] NZCA 26

BETWEEN	JANFERIE MAEVE ALMOND Appellant
AND	BRUCE JAMES READ First Respondent ETHNE GLADYS READ Second Respondent CHRISTOPHER JOHN READ Third Respondent

Hearing:	29 August 2018
Court:	Winkelmann, Duffy and Peters JJ
Counsel:	S I Perese for Appellant G D Stringer and A Dhanji for First Respondent N W Woods for Second and Third Respondents
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Almond v Read

Details

AGLC: Almond v Read [2019] NZCA 26
Case: [2019] NZCA 26
Decision Date: 1 March 2019 at 12 pm

CaseChat Overview and Summary

Almond v Read is an appeal against a finding of a constructive trust in respect of a rural property purchased and developed by Janferie Almond and her parents. The respondents, the parents and Almond's brother, alleged that they had agreed to share ownership of the property in proportion to their financial contributions, and that Almond held title as constructive trustee. The appeal was dismissed, with Almond ordered to pay costs. The appeal hinged on the Judge's findings that the parties had a common intention to share the property, and that the respondents were entitled to an interest in the property. The Court found that the Judge's findings were supported by the evidence, and that the appeal was based on a version of events that was inconsistent with the evidence given in the High Court. The appeal also hinged on whether the respondents were entitled to a constructive trust. This argument was not pursued because the Court was satisfied that the money had been contributed on the basis found by the Judge, pursuant to an agreement to share equity in proportion to contributions. Finally, the appeal challenged the finding that Almond had breached her fiduciary duties in relation to her mother's funds. The Court found that the Judge had a proper factual foundation for this finding.

Orders