Clark v Clark - [2022] NZHC 786

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000463

[2022] NZHC 786

BETWEEN
GREGORY BERNARD CLARK

Plaintiff

AND

FELICITY KATE CLARK

Defendant

Hearing: 29 March 2022

Appearances:

G E Slevin and S C Lester for Plaintiff J Moss for Defendant

Judgment:

13 April 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 13 April 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CLARK v CLARK [2022] NZHC 786 [13 April 2022]

[1] The plaintiff (Mr Clark) and the defendant (Felicity) are father and daughter.1 Mr Clark seeks summary judgment for sums Felicity is said to owe under four loan agreements. Felicity opposes summary judgment on the basis the advances were gifts not loans or, in the alternative, it is unclear what portions of the advances were loans and what were gifts.

Background

[2] Felicity has a background in property management. In 2015, she purchased a property at Bickerton Street as an investment. She asked her parents to lend her
$70,000 for costs relating to the purchase and for repairs. She provided her parents with a form of loan agreement dated 21 August 2015. It stated that she intended to repay the loan within three years or as soon as practicable from surplus rental income. It also stated she would be looking to “duplicate this model” by borrowing further funds from her parents.

[3] That loan agreement was never signed by Mr and Mrs Clark. They did, however, make an advance to Felicity on 27 August 2015. On that day, $171,178.77 was transferred from Mr and Mrs Clarks’ Westpac Bank account to Felicity’s solicitor’s trust account to complete the purchase of the Bickerton Street property. Felicity repaid her parents $103,000 the same day. The net result was an advance to Felicity of $68,213.77.2 I understand the transaction occurred in this way because Felicity needed cleared funds to settle the purchase.

[4] Subsequently, further amounts were advanced to Felicity by her parents from their Westpac Bank accounts. An amount of $22,500 was advanced on 24 September 2015 for a deposit on a property at Woodham Road. An amount of $202,895 was advanced on 22 October 2015 to complete the purchase of the Woodham Road property. On 7 March 2016, $40,000 was advanced for renovations to the Bickerton Street property.

1 I am referring to the defendant as Felicity rather than Ms Clark to more clearly distinguish between her and her mother.
2 Which takes into account bank charges incurred to transfer the advance as same day cleared funds.

[5] On 6 March 2016, Mr Clark and Felicity entered into four loan agreements in respect to the four advances. The loan agreements were prepared by Mr Clark. Felicity made alterations to them in her own handwriting. The loan agreements show the amount of each advance, the dates the advances were made, and under the signatures of Felicity and Mr Clark the date…

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 Clark v Clark

Details

AGLC: Clark v Clark [2022] NZHC 786
Case: [2022] NZHC 786
Decision Date: 13 April 2022

CaseChat Overview and Summary

The case of Clark v Clark involved a dispute between Gregory Bernard Clark and his daughter Felicity Kate Clark over four loan agreements totaling $333,608.77. The plaintiff, Mr. Clark, sought summary judgment for the repayment of the advances, while the defendant, Felicity, argued that the advances were intended to be gifts rather than loans, or that it was unclear what portions of the advances were loans and what were gifts. The High Court of New Zealand, Christchurch Registry, was tasked with determining whether summary judgment could be granted.

The court considered the principles of summary judgment, the evidence presented by both parties, and the circumstances surrounding the loan agreements. The court found that while there was evidence suggesting the advances were intended to be loans, there were also significant factual disputes regarding the terms of the loan agreements and the circumstances under which they were signed. The court concluded that it could not be satisfied that Felicity did not have a tenable defence to the claim, as the only claim made was based on the loan agreements. As a result, the application for summary judgment was dismissed, and the case was set down for a case management conference to be heard at the first available date.

The court ordered that costs were to be reserved, and counsel were instructed to file a joint memorandum with a proposed timetable at least three working days prior to the conference. The case highlighted the importance of clear evidence and the need to resolve factual disputes before granting summary judgment in cases involving complex family relationships and financial transactions.

Orders