BETWEEN
WARWICK JAMES BURGESS

First Plaintiff

CTE BURGESS LTD Second Plaintiff

AND

PHILLIP CHARLES MONK First Defendant

NEW ZEALAND GUARDIAN TRUST COMPANY LTD

Second Defendant

Other defendants continued overleaf

Hearing:
25, 26, 27, 28, 29 September, 2, 3, 4, 5, 10, 11, 12, 13, 16, 17,

18, 19, 20, 24, 26, 27, 31 October, 1, 2, 3, 6, 7, 9, 10, 13, 14, 15 and 20 November 2017 (at Hamilton)

Counsel:

D G Chesterman, S Carey and E McGill for Plaintiffs
R J Latton, H Ford, G Schumacher and S Laing for First and
Second Defendants
No appearance by, or on behalf of Third Defendant

A S Ross QC and G Beresford for Fourth and Sixth Defendants C T Walker QC and A Lenard for Fifth, Seventh and Eighth Defendants

Judgment:

20 December 2017

JUDGMENT (NO. 6) OF HEATH J

This judgment was delivered by me on 20 December 2017 at 11.30am pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

BURGESS v MONK [2017] NZHC 3255 [20 December 2017]

ANDDAVID TROUNSON Third Defendant

ANDALISDAIR HUGH MORRISON Fourth Defendant

ANDARMER FARMS (N.I.) LTD Fifth Defendant

AND OʼSULLIVAN CLEMENS

Sixth Defendant

ANDGRAEME WILLIAM ELVIN AND SHARLENE DARRAGH
Seventh Defendants

ANDTIHOI HOLDINGS LIMITED Eighth Defendant

CONTENTS

1. The story starts in 1936 [1]

2. Preliminary observations [16]

3.
An

(a)

outline of events

1936-1970

[21]

(b) The 1970s [30]

(c) The 1980s

(i) The effect of Christian’s death [37]

(ii) Estate planning for Molly [50]

(d) The 1990s [56]

(e) 2000–2007 [74]

(f) 2008-2010 [93]

4. The claims

(a) The constructive trust claims [113]

(b) Trustee duty claims

Nature of the claims [119]

“Intentional” breaches [121]

“Negligent” breaches [123]

(c) Fiduciary duty claims [125]

(d) Breach of 2009 settlement agreement [128]

(e) Claim against Mr Monk [132]

(f) Claim against Mr Morrison and O’Sullivan Clemens [134]

(g) Claim against the Armer interests [139]

5.        Analysis
(a)       The constructive trust claims
(i)        The Lankow v Rose trust
The nature of the claim  [143] The evidential foundation for the claim        [161] Conclusion  [176]

(ii) The Lake v Bayliss trust
The nature of the claim [177] CTE’s claim [184] Why was the 1980 Agreement signed? [187] Was the 1980 Agreement enforceable? [195]

(b)       Claims against Christian’s Trustees and Molly’s Trustees
(i)        The trustee duty claims
The duty to execute the trust  [214] Did Molly’s will create a precatory trust?    [217] Duty of disclosure  [228] Obligation to treat beneficiaries                   [234] “even-handedly”

(ii) The fiduciary duty claims [242] Christian’s Trustees’ fiduciary duties [248] Molly’s Trustees’ fiduciary duties [255]

(iii) The development claim
The nature of the claim [262] Relevant facts [270] Mr Burton’s evidence [292] Relevant legal principles [296] The role of Christian’s Trustees: 1980/1985 [302] Evaluation of development claim [312]

(iv) The sale at an undervalue claim
The nature of the claim [321] The valuation issues [323] Valuation of the Burgess…

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 Burgess v Monk

Details

AGLC: Burgess v Monk [2017] NZHC 3255
Case: [2017] NZHC 3255
Decision Date: 20 December 2017

CaseChat Overview and Summary

Warwick James Burgess and CTE Burgess Ltd (the plaintiffs) commenced proceedings in the High Court against a number of defendants, including the trustees of their father's and mother's estates, a law firm, and the purchasers of the Burgess Farm and Trading Post. The plaintiffs sought relief in relation to the sale of the Burgess Farm and Trading Post to Armer Farms (N.I.) Ltd (Armer Farms) in 2009, and claimed that the defendants had breached their fiduciary duties, committed breaches of trust, and/or acted negligently. The defendants denied the allegations and counterclaimed. The plaintiffs' claims were based on a number of different legal theories, including constructive trusts, breach of fiduciary duty, breach of trustee duties, and breach of the 2009 settlement agreement. The court was required to decide whether the defendants had breached any of the alleged duties, and if so, whether any of the plaintiffs' claims were successful. The court found that the defendants were not liable for any of the claims brought by the plaintiffs. The court held that the plaintiffs' claims were not well-founded and that the defendants were entitled to costs on a full costs basis. The court also held that the plaintiffs' claims against the trustees were not well-founded and that the trustees were entitled to costs on a full costs basis. The court further held that the plaintiffs' claims against the Armer interests were not well-founded and that the Armer interests were entitled to costs on a full costs basis. The court also held that the plaintiffs' claims against the law firm were not well-founded and that the law firm was entitled to costs on a full costs basis. The court found that the defendants were not liable for any of the claims brought by the plaintiffs. The court held that the plaintiffs' claims were not well-founded and that the defendants were entitled to costs on a full costs basis.

Orders