Burton v Jennings - [2020] NZHC 1423

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000441

[2020] NZHC 1423

IN THE MATTER of an equitable interest in property by way of constructive trust

BETWEEN

ALYCIA HELEN LOUISE BURTON

Plaintiff

AND

BELINDA HELEN JENNINGS, STEPHEN JENNINGS and HATHERLEY LOUGHNAN TRUSTEES LIMITED as

trustees of THE JENNINGS GORT FAMILY TRUST

Defendants

Hearing: 8 June 2020

Appearances:

S J Bee for Plaintiff

P M Smyth for Defendants

Judgment:

23 June 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 23 June 2020 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BURTON v JENNINGS [2020] NZHC 1423 [23 June 2020]

Introduction

[1] This ruling concerns the defendants’ application for security for costs.1 In this proceeding, the plaintiff (Ms Burton) claims that the defendants hold a property at Telegraph Road, Burnham (the property) on constructive trust for her. She relies upon the principles in Lankow v Rose.2

[2] Ms Bee sensibly acknowledges the threshold for granting an order for security for costs has been established and that in exercise of the court’s discretion security for costs will be required. Ms Burton is resident out of New Zealand and it is just in all the circumstances that security for costs be provided.3 I am only required to decide what represents an appropriate amount of security and what form of security would be satisfactory.

The litigation background in context

[3] The first and second-named defendants (the Jennings) and the third-named defendant, Hatherley Loughnan Trustees Limited, are the trustees of the Jennings Gort Family Trust. The Jennings are also the parents of Caleb Jennings (Caleb). Ms Burton married Caleb in 2012. Caleb died in October 2018.

[4] The defendants own the property as trustees. In early-2015, Ms Burton and Caleb were looking to purchase a house. In discussions with the Jennings, it was decided to place a relocatable house on the property for them. A loan was taken out by Caleb and the Jennings to fund the purchase, relocation and refurbishment of the relocatable house (the loan).

[5] In 2016, Ms Burton moved overseas to pursue her career. There were discussions between Ms Burton and Caleb about ending their relationship. Ms Burton says the separation did not occur. She returned to New Zealand for a time after Caleb’s death but has returned to live in Australia and the United States where she has

1      High Court Rules 2016, r 5.45.
2      Lankow v Rose [1995] 1 NZLR 277 (CA).
3      High Court Rules, r 5.45(a)(i).

established a business. She says for taxation reasons she cannot now return to New Zealand.

[6] Ms Burton pleads she made substantial contributions, directly and indirectly, to the property. These contributions are said to include payments towards the loan and the cost of utilities/insurance, liaising with contractors, the performance of work (including clearing land, building fences and painting) and ensuring the house achieved code compliance. In addition, Ms Burton’s…

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 Burton v Jennings

Details

AGLC: Burton v Jennings [2020] NZHC 1423
Case: [2020] NZHC 1423
Decision Date: 23 June 2020

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, the plaintiff, Alycia Helen Louise Burton, brought a claim against the defendants, Belinda Helen Jennings, Stephen Jennings, and Hatherley Loughnan Trustees Limited as trustees of the Jennings Gort Family Trust. The plaintiff sought to establish a constructive trust over a property located at Telegraph Road, Burnham, which she claimed she holds an equitable interest in. The defendants, who own the property as trustees, denied any interest held by the plaintiff. The case involved the defendants' application for security for costs.

The legal issue before the court was to determine an appropriate amount of security for costs and the form in which it should be provided. The court considered factors such as the nature and complexity of the claim, the estimated duration of the trial, and the probable costs if the plaintiff were unsuccessful. The court also had to consider the relative strength of the plaintiff's case and the potential hardship an order for security may cause.

The court found that the amount of security for costs should be within a range of $25,000 to $35,000. Based on the factors considered, the court decided to order the plaintiff to provide $25,000 as security for costs. This amount was within the range the parties had initially agreed upon, and the court found that the defendants' decision to resiled from the agreement was made reluctantly after taking advice regarding their ethical obligations. The court also found that the plaintiff had the means to provide the security and that requiring a greater sum would be unjust.

Final orders:
The plaintiff is to provide by way of security for the defendants' costs, disbursements, and expert witnesses' fees the sum of $25,000. This sum is to be paid into court by the plaintiff within 21 days of the date of this decision and held on interest-bearing deposit pending further order of the court. If the plaintiff fails to comply with the order, the proceeding shall be stayed until the sum of $25,000 is paid into court. Costs shall lie where they fall, but either party may apply for costs within 14 days of this decision.

Orders