Buchanan v Buchanan - [2025] NZHC 1112

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-70

[2025] NZHC 1112

BETWEEN
NEIL ROBERT BUCHANAN and JULIE PATRICIA BUCHANAN and DOWNIE
STEWART TRUSTEE LIMITED as trustees of The Buchanan (NR & JP) Family Trust

First Plaintiffs

AND

NEIL ROBERT BUCHANAN

Second Plaintiff

AND

GRAEME RUSSELL BUCHANAN and BARBARA JEAN BUCHANAN and OND

TRUSTEES LIMITED as trustees of the G R & B J Buchanan Family Trust

Third Plaintiff

AND

GRAEME RUSSELL BUCHANAN

Fourth Plaintiff

AND

LYNLEY BUCHANAN

Defendant

Hearing: 29 April 2025

Appearances:

T M Sefton for Plaintiffs

B A J Taylor for Defendant

Judgment:

9 May 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

BUCHANAN v BUCHANAN [2025] NZHC 1112 [9 May 2025]

[1] This proceeding involves a long-running and acrimonious family dispute concerning the subdivision of land owned by the parties. Essentially the dispute is between Neil, Graeme and Lynley Buchanan, who are siblings. Neil and Graeme, through their family trusts, along with Lynley, own a property at Beacon Point Road, Wanaka containing 1.1578 hectares, as tenants-in-common, each holding a one-third share.

[2] At a judicial settlement conference in May 2020, agreement was reached on the division of the property. The agreement was recorded in a settlement agreement. A Tomlin Order was made on 3 June 2020.

[3] Ten months later, the Tomlin Order had not been implemented. This resulted in Neil and Graeme applying to enforce the Tomlin Order on 11 February 2021 (the first enforcement order). That application was settled by the Tomlin Order and the settlement agreement being varied to require an attorney to be appointed by all parties to carry out the terms of the settlement agreement. That variation was confirmed by a further Tomlin Order.

[4] The agreement settling the first enforcement application provided that the attorney shall have the following powers:

(b)The Attorney shall have full autonomy and all necessary powers to carry out the terms of this Agreement, including (without limitation) signing all documents and instruments, making decisions, engaging contractors, incurring costs and creating easements and covenants over land. The Attorney’s appointment may be revoked jointly by all parties to this Agreement or by the Court on application by one or more of the parties, but not by any party unilaterally.

(c)The Attorney’s decisions shall bind the parties. The parties must immediately upon demand pay all costs incurred by the Attorney to carry out the terms of this Agreement in the shares provided for in this Agreement, including by making advance payment of costs to be incurred. The First Plaintiff, the Third Plaintiff and the Defendant must pay the Attorney’s fees as to a one third share each. The parties must sign all documents and instruments which the Attorney requests them to sign to carry out the terms of this Agreement.

(d)For the avoidance of doubt, the Attorney will keep the parties informed as to the progress of implementing this Agreement but does not need to consult with the parties or obtain their…

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 Buchanan v Buchanan

Details

AGLC: Buchanan v Buchanan [2025] NZHC 1112
Case: [2025] NZHC 1112
Decision Date: 9 May 2025

CaseChat Overview and Summary

The High Court of New Zealand was asked to enforce a settlement agreement between siblings Neil, Graeme, and Lynley Buchanan regarding the subdivision of jointly owned land. The siblings each held a one-third share in a property in Wanaka, and had reached an agreement on its division, recorded in a settlement agreement and a Tomlin Order. The agreement provided for the appointment of an attorney to implement the settlement, with broad powers to make decisions and incur costs without needing to consult the parties. Disputes arose over Lynley's refusal to pay her share of the subdivision costs, claiming issues with the cost estimate and the terms of the settlement agreement.

The court found that Lynley's refusal to pay was unjustified, as the issues she raised did not warrant withholding payment. The cost of forming an additional crossing point to Lynley's property was not to be shared by the parties, as it was for Lynley's benefit only. Similarly, the width of the access strip did not need to be four metres, as the settlement agreement and the resource consent application had already set it at 3.6 metres. The court emphasised that Lynley was bound by the settlement agreement and could not withhold payment unless her claims on disputed issues were accepted by Neil and Graeme. The court ordered Lynley to pay her share of the subdivision costs, minus the amount for tree removal which had already been paid, and granted indemnity costs to Neil and Graeme for having to enforce the agreement through the court.

The court reserved leave for Neil and Graeme to apply for further orders regarding the enforcement of Lynley's obligation to pay, and instructed the parties to negotiate the costs within a specified timeframe. The judgment underscored the importance of the parties adhering to the terms of the settlement agreement and the broad powers conferred on the attorney to implement it, free from the parties' animosity and disputes.

Orders