Barry v Carlisle - [2015] NZHC 1554

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV 2014-406-19 [2015] NZHC 1554

BETWEEN
LYNDA ROSE BARRY

Plaintiff

AND

FRANCIS CARLISLE Defendant

Hearing:
Written submissions:

4-8 May 2015

8 June 2015

Counsel:

S J Zindel and J Gully for Plaintiff
M G Locke for Defendant

Judgment:

6 July 2015

JUDGMENT OF BROWN J

[1] The plaintiff seeks specific performance of “a written agreement in the form of a deed”1 dated 17 October 2002 (the Agreement) concerning ownership of the property at 2355 Wairau Valley Road, Blenheim (MB 1A/190 Marlborough Land Registry) which is registered in the name of the defendant. An order is sought requiring the defendant to transfer to the plaintiff a half share in that property.

[2] The defendant denies that the document is a deed for the reason that the parties did not intend it to be a deed. If the document is not a deed, then he argues that the Agreement is void for want of consideration.

1 As pleaded in para 3 of the statement of claim.

BARRY v CARLISLE [2015] NZHC 1554 [6 July 2015]

[3] He further contends that in 2000 he became seriously ill with heavy metal poisoning which resulted in his suffering a range of symptoms, including a reduction in intellectual and cognitive functioning, which symptoms were present at the time the Agreement was signed. He contends that he would not have signed the Agreement if:

(a) he had received legal advice regarding the Agreement; (b) he had not been unwell;
(c) he had not been pressured and threatened by the plaintiff; and

(d) he had appreciated what his legal rights and remedies were.

[4] In consequence he pleads three affirmative defences: undue influence, duress and unconscionable bargain.

Evolution of the issues

[5] It was apparent from the pleadings and the written openings that both parties were proceeding on the footing that if the Agreement was a deed, the plaintiff could enforce it despite an absence of consideration.2

[6] Consequently on 1 May 2015 I issued a brief Minute drawing attention to the proposition that equity will not specifically enforce a contractual promise for which there is no consideration unless the promise is embodied in a deed which came into
operation on or after 1 January 2008.3

2 Terry Sissons “Specific Performance” in Andrew Butler (ed) Equity and Trusts in New Zealand
(2nd ed, Thomson Reuters, Wellington, 2009) at [24.2.4(1)].
3 Property Law Act 2007, s 18.

[7] Apparently accepting that proposition, the plaintiff advised that she proposed to adduce evidence to show that consideration was provided to the defendant which was materially adequate for equity to enforce his promise in the Agreement. However the defendant countered that a finding that the document was not a deed was likely to be determinative of the proceeding, invoking s 12 of the Property Law
Act 1952 which states:4

12. Disclaimers

No disclaimer of any land shall be valid unless the same is made by deed or by matter of record.

[8] Consequently…

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 [2015] NZHC 1554
Case: [2015] NZHC 1554
Decision Date: 6 July 2015

CaseChat Overview and Summary

Lynda Rose Barry seeks specific performance of a written agreement dated 17 October 2002 (the Agreement) concerning ownership of the property at 2355 Wairau Valley Road, Blenheim. The Agreement provides for the transfer of a half share in that property to the plaintiff. Francis Carlisle denies that the Agreement is a deed for the reason that the parties did not intend it to be a deed. He argues that if the Agreement is not a deed, then it is void for want of consideration. He also pleads three affirmative defences: undue influence, duress and unconscionable bargain. The court found that the Agreement was a deed because viewed objectively, the parties intended it to be a deed. However, there was no consideration for the defendant’s promise in the Agreement and consequently no order for specific performance may lie. The court found that the defendant’s third affirmative defence of unconscionable bargain succeeded. The other two affirmative defences, duress and undue influence, did not succeed. The defendant is prima facie entitled to costs and reasonable disbursements as fixed by the Registrar.

Orders