Bell v Bell - [2015] NZHC 3059

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000436 [2015] NZHC 3059

BETWEEN
ALISON HELEN BELL

Plaintiff

AND

JOHN BRUCE BELL First Defendant

AND

ALASTAIR PETER BELL Second Defendant

AND

ALASTAIR PETER BELL AND JOHN BRUCE BELL AS TRUSTEES OF THE BELL FAMILY TRUST

Third Defendants

AND

ALASTAIR PETER BELL AND JOHN BRUCE BELL AS EXECUTORS OF THE ESTATE OF J M BELL

Fourth Defendants

Hearing: 27 November 2015

Appearances:

J V Ormsby and S A Woods for Plaintiff/Applicant
M J Wallace for Defendants/Respondents

Judgment:

27 November 2015

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on plaintiff ’s summary judgment application

[1] The parties are sister (plaintiff) and brothers (defendants). As the proceedings concern members of the Bell family, I will refer to the individuals by their Christian names.

[2] Alison’s summary judgment application centres on information which she

asserts is necessary for the performance and implementation of a settlement

BELL v JOHN BRUCE BELL [2015] NZHC 3059 [27 November 2015]

agreement which she entered into with Bruce and Alastair on 26 February 2014. The orders Alison seeks are in the nature of specific performance. Bruce and Alastair oppose the making of any of the requested orders (although there has been progress on some matters since the issue of the proceeding).

The family situation

[3] The parties are the children of Helen Bell and the late John Bell.

[4] John (as I will describe the father) died in August 2003. Helen is in care and not of sound mind. Bruce (given names John Bruce) and Alastair are her returnees in relation to property and Bruce is her attorney for care and welfare.

[5] Following John’s death, issues arose between the children as to the management of Helen’s affairs, the management of John’s estate (the Estate), and the management of the Bell Family Trust (the Trust). The interests of the children in the Trust and the Estate were either not fixed or in dispute.

[6] Alison initiated litigation in 2010 seeking information as to the Trust and its dealings with the Estate. An independent audit was completed in early 2014.

[7] On 26 February 2014, the siblings attended a mediation at which they reached agreement on a full and final settlement, recorded in a settlement agreement signed by them that day.

The settlement agreement

[8] By the settlement agreement, the siblings agreed amongst other things:

(a) The net value of the Estate and Trust was assessed as being

$1,850,000.

(b)Alison was to receive $850,000 (including $100,000 for legal expenses) from the estimated $1,850,000 or, in the event realisations differed from the estimates, 42.85 per cent of the realised value.

[9] The parties expressly provided for the possibility that the realised value of two properties (houses at Paton’s Rock and in Harrison Street (the properties)) might differ from the figures used as estimates.

[10] The respective properties were to be valued and transferred to Alison (individually) and to Bruce and Alastair (jointly) with any alteration in value to be the subject of the…

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.

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Details

Case: [2015] NZHC 3059
Decision Date: 27 November 2015

CaseChat Overview and Summary

The case of Bell v Bell involved a dispute between siblings regarding the implementation of a settlement agreement concerning their parents' estate and trust. Alison Bell sought specific performance of the settlement agreement, which required the provision of various financial documents and information by her brothers, Bruce and Alastair Bell, who were the other defendants. The High Court of New Zealand considered Alison's summary judgment application to determine if the defendants had any arguable defence to her claims. The court found that the defendants had no defence to the majority of Alison's requests for information, which were necessary for the proper implementation of the settlement agreement. The court granted specific performance orders for the production of certain financial documents and statements within a specified timeframe. The court dismissed some of Alison's requests for information, either because they were no longer necessary or because they went beyond the scope of the settlement agreement. The court also declined to order the defendants to identify personal items belonging to their mother, Helen Bell, as this was outside the scope of the settlement agreement. Finally, the court ordered the defendants to pay Alison's costs of the summary judgment application on a 2B basis, less 10 per cent, together with disbursements to be fixed by the Registrar.

Orders