Basher v Basher - [2013] NZHC 1334

IN THE HIGH COURT OF NEW ZEALAND

NAPIER REGISTRY

CIV-2012-441-805 [2013] NZHC 1334
BETWEEN WAYNE JOHN BASHER
Appellant

AND ELLISHA NICHOLE BASHER
First Respondent
AMANDA STACEY BASHER Second Respondent

Hearing: 4 June 2013

Counsel: JF McDowell for Appellant

A McEwan for Respondents

Judgment: 6 June 2013

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 6 June 2013 at 4.00 p.m.,
pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

Solicitors: John McDowell, Napier

Langley Twigg, Napier

Introduction

The first respondent (Ellisha) and second respondent (Amanda) are the
appellant’s daughters. Suing through their litigation guardian, they sought to recover from their father payments by way of wages and gifts paid to each of them by their maternal grandparents. These wages and gifts were paid into bank accounts operated by their father and their late mother. After a defended hearing in the District Court at Napier, Judge Rea entered judgment for Ellisha and Amanda against their father in the sums of $11,154.98 and $9,226.08 respectively. Mr Basher appeals against the decision.

Background

At the time of the District Court hearing, Ellisha and Amanda were
respectively aged 18 and 15 years. As young children they had been employed on weekends and school holidays doing odd jobs in their maternal grandparents’ joinery business. They were each paid a wage that was recorded in the business records and declared for tax purposes.
Their father (who also worked in the business) and his wife set up bank
accounts in the names of the two girls. Each had their own bank account and there was a third account in the names of the two girls jointly. All three accounts were operated by their parents. Cheques for wages were given to Mr Basher who deposited the money into these accounts. The girls also each received a gift of $1,000 from their grandparents, which was paid into the accounts.
As Judge Rea described it, Mr Basher and his wife operated the accounts in
an unconventional manner. They used all three accounts for their own purposes, including share trading. The girls’ wages and gifts were not kept separate from other money deposited in the accounts by Mr Basher and his wife. However, the grandparents kept careful business and banking records, making it relatively easy to identify the sum that each of the girls received from them.
Mrs Basher died in 2005. Relations between Mr Basher, his two daughters

ultimately, responsibility for the custody and care of the girls was awarded to the grandparents.

In 2008, Ellisha and Amanda discovered that the bank accounts in their
names had been closed by their father and that he had retained the funds. He was asked about the money. He replied by email on 18 July 2008 as follows:
“The money in the savings account WILL be returned upon Ellisha turning 25, not BEFORE!! As requested by her mother and father when this account was set up, the purpose of this account was when the girls…

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 Basher v Basher

Details

AGLC: Basher v Basher [2013] NZHC 1334
Case: [2013] NZHC 1334
Decision Date: 6 June 2013

CaseChat Overview and Summary

The case of Basher v Basher involved the daughters, Ellisha and Amanda, suing their father, Wayne John Basher, to recover payments by way of wages and gifts paid to them by their maternal grandparents. The payments were made into bank accounts operated by the father and their late mother. After a defended hearing in the District Court at Napier, Judge Rea entered judgment for Ellisha and Amanda against their father in the sums of $11,154.98 and $9,226.08 respectively. Mr Basher appealed against the decision.

The legal issues the court was required to decide were whether the elements necessary to establish a constructive trust were present, and whether not all the money in the bank accounts should be subject to the trust. The court also considered whether s 12 of the Wages Protection Act 1983 applied to the case.

The court found that an express trust came into existence as the money was paid to Mr and Mrs Basher to be held on trust and paid to the girls when they were old enough to manage their own affairs. The three certainties are present: certainty of intention, certainty of object and certainty of subject matter. The court held that Mr Basher is in breach of trust in failing to account to his daughters for the money. The judgment against him must be upheld. The appeal is dismissed, and the respondents are entitled to costs on a category 2 band B basis.

Orders