Cooke v Butler - [2023] NZHC 2716

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-124

[2023] NZHC 2716

UNDER Part 18 of the High Court Rules 2016

IN THE MATTER OF

an application for determination of a beneficiary's claim under a constructive trust

BETWEEN

JANET MARIE COOKE, SHARON MARIE COOKE and STANLEY

CHARLES BARKER, as trustees of The Cooke Family Trust

Plaintiff

AND

PENNY LEE-ANNE BUTLER

First Defendant

CHARLES ANDREW AXELSEN BUTLER
Second Defendant

continued over

Hearing: 19 September 2023

Counsel:

RA Hearn and C D Pinkey for Plaintiffs S M Grieve KC for the Defendants

Judgment

28 September 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 28 September 2023 at 3.00 pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors/Counsel:
Corcoran French, Christchurch Saunders Co, Christchurch

S M Grieve, Barrister, Christchurch

COOKE v BUTLER [2023] NZHC 2716 [28 September 2023]

CIV-2021-409-152

BETWEENJANET MARIE COOKE, SHARON MARIE COOKE and STANLEY
CHARLES BARKER, as trustees of The Cooke Family Trust
Plaintiffs

AND PENNY LEE-ANN BUTLER

First Defendant
CHARLES ANDREW AXELSEN BUTLER
Second Defendant

Introduction

[1] The plaintiffs in these two proceedings are the trustees of the Cooke Family Trust (the Trust). The first named plaintiff, Janet Cooke, is the mother of the first defendant, Penny Butler. Mrs Butler is a discretionary beneficiary of the Trust. The second defendant, Charles Butler, is the first defendant’s husband.

[2] In CIV-2021-409-124, the trustees seek to recover debts allegedly owed to the Trust by Mr and Mrs Butler (the debt proceeding).

[3] The trustees acknowledge that Mrs Butler has an interest in the Trust’s land at 555 Birchs Road, Lincoln (the property). In CIV-2021-409-152, the trustees seek declarations as to the extent of that interest and any interest that Mr Butler has in the property (the land proceeding).

[4] Mr and Mrs Butler have counterclaimed in the land proceeding. They seek various forms of relief in respect of Mrs Butler’s interest in the property, including a declaration of a constructive trust and ancillary orders regarding the terms of that trust.

[5] On 28 March 2023, counsel for the trustees filed a memorandum opposing Mr and Mrs Butler’s application for an adjournment of an interlocutory hearing set down for 4 April 2023 and a substantive trial scheduled for June 2023 (the memorandum). In the memorandum, the trustees disclosed the terms of an open offer made by them to Mr and Mrs Butler to settle the two proceedings.

[6] Mr and Mrs Butler did not accept the offer and now contend that the offer contains admissions of facts. On that basis, they have applied under r 15.5 of the High Court Rules 2016 (HCR) for:

(a)judgment dismissing the trustees’ claims in the debt proceeding and the land proceeding; and

(b)judgment against the trustees on the counterclaim.

Background

[7] In 2015, Mrs Cooke and Mrs Butler agreed that a section of land that forms part of the property would be allocated to Mrs Butler so…

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 Cooke v Butler

Details

AGLC: Cooke v Butler [2023] NZHC 2716
Case: [2023] NZHC 2716
Decision Date: 28 September 2023

CaseChat Overview and Summary

The case of Cooke v Butler involves the trustees of the Cooke Family Trust (the plaintiffs) and Penny Butler, a beneficiary of the Trust, along with her husband Charles Butler (the defendants). The plaintiffs sought to recover debts and obtain declarations regarding property interests from the defendants. In response, the defendants counterclaimed for various forms of relief, including a declaration of a constructive trust and ancillary orders. The central issue in this case was whether an offer made by the plaintiffs to settle the proceedings constituted an admission of facts that would entitle the defendants to judgment on their counterclaim and against the plaintiffs' claims. The court held that the offer did not amount to an admission of facts sufficient to entitle the defendants to judgment. The court found that the offer was made without any concession as to the legal positions of the parties and was intended as a good faith attempt to resolve the proceedings amicably. The offer did not contain clear and unambiguous admissions of the facts necessary to substantiate the defendants' causes of action. Consequently, the application for judgment on admission of facts was dismissed. The court indicated that costs would follow the event on a 2B basis and provided a timeline for the parties to submit cost memoranda if they could not agree on costs.

Orders