Barry v Carlisle - [2016] NZCA 551

IN THE COURT OF APPEAL OF NEW ZEALAND

CA446/2015
[2016] NZCA 551

BETWEEN	LYNDA ROSE BARRY Appellant
AND	FRANCIS CARLISLE Respondent

Hearing:	7 November 2016
Court:	Randerson, Duffy and Whata JJ
Counsel:	R W Ord for Appellant M G Locke for Respondent
Judgment:	24 November 2016 at 11:30 am

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.
B The application by the appellant to adduce further evidence on appeal is declined.
CThe appeal is dismissed.
D There is no order for costs since the appellant is legally aided. In terms of s 45(5) of the Legal Services Act 2011, but for the grant of legal aid, the Court would have awarded the respondent costs for a standard appeal on a band A basis with reasonable disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No

Introduction
Background facts

The Matakana property
The purchase of the Wairau Valley property
The period from 1998 until the 2002 deed
Mr Carlisle’s ill health

The 2002 deed

Dr Schnabel’s evidence

Ms Barry’s application to adduce further evidence on appeal
Was the Judge correct to find that the 2002 deed could not be specifically enforced due to lack of consideration?
Was the Judge correct to find that if the deed was enforceable, it constituted an unconscionable bargain?

Unconscionability — our assessment

Result

[1]
[4]
[6]
[14]
[18]
[22]
[25]
[31]
[37]

[48]

[61]
[65]
[73]

Introduction

The appellant Ms Barry appeals against a judgment of Brown J in which he declined to order specific performance of a written agreement with the respondent Mr Carlisle dated 17 October 2002.[1] The agreement related to the ownership of a property near Blenheim registered in Mr Carlisle’s name. Relying on the agreement, Ms Barry had sought an order requiring Mr Carlisle to transfer to her a half share in the property. The essence of the High Court judgment is:
(a)The agreement was a deed.
(b)There was no consideration for the deed and, in consequence, the Court would not order specific performance.
(c)In any event, the deed was an unconscionable bargain and was unenforceable for that reason.
[1]Barry v Carlisle [2015] NZHC 1554, (2015) 16 NZCPR 449 [High Court judgment].
On appeal, there is no dispute that the document was a deed even though it was not described as such. However, Ms Barry challenges the other two findings made in the High Court.
There being no opposition, we grant the appellant an extension of time to appeal.

Background facts

Over a period of five days, Brown J heard extensive evidence from the parties as to the nature of their relationship and the events surrounding the 2002 deed. Ms Barry did not call any supporting evidence but Mr Carlisle did so including an expert witness who gave evidence of Mr Carlisle’s poor health. In particular, he was diagnosed in November 2000 with a condition known as manganese toxicity. We will refer later to this evidence in more detail since it…

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 Barry v Carlisle

Details

AGLC: Barry v Carlisle [2016] NZCA 551
Case: [2016] NZCA 551
Decision Date: 24 November 2016 at 11:30 am

CaseChat Overview and Summary

This appeal by Ms Lynda Barry against a decision of Brown J in the High Court at Auckland was heard in the Court of Appeal at Wellington on 7 November 2016. The appeal is dismissed. The Court grants the appellant an extension of time to appeal but declines the application to adduce further evidence on appeal. The appeal concerns a deed dated 17 October 2002 relating to the ownership of a property in the Wairau Valley near Blenheim registered in Mr Francis Carlisle’s name. Ms Barry seeks an order requiring Mr Carlisle to transfer to her a half share in the property. The appeal raises two issues: whether the 2002 deed could be specifically enforced due to lack of consideration and whether the deed constituted an unconscionable bargain. On the first issue, the Court found there was no consideration provided by Ms Barry that could have supported a claim for specific performance of the 2002 deed. On the second issue, the Court found the 2002 deed was “in no measure fair and reasonable” and could not be upheld.

Orders