Cooke v Butler
[2023] NZHC 2716
•28 September 2023
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 Defendantcontinued 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 that she could construct a house on the section to serve as her family home. The parties contemplated that the property would be sold to a developer to be subdivided, at which time Mrs Butler would obtain legal ownership of the land allocated to her.
[8] The trustees accept that this agreement bestowed on Mrs Butler an interest in the property, so it can be inferred that there is no issue with Mrs Cooke’s authority to bind the trustees.
[9] On 12 June 2015, Mrs Butler signed a deed of acknowledgement of debt, acknowledging that she owed $100,000 to the Trust. This debt is not related to the property. The background that led to the deed of acknowledgement of debt is not relevant to the issues that I need to determine.
[10] The trustees plead that the debt of $100,000 has fallen due for repayment. Mrs Butler pleads that the trustees are estopped from demanding repayment because they represented to her that repayment would only be required upon the dissolution of her marriage to Mr Butler, in the sense that the deed was a form of asset protection. Mr and Mrs Butler remain married.
[11] Mr and Mrs Butler commenced construction of a house on the property in 2017. The trustees advanced $250,000 to Mr and Mrs Butler to apply towards the cost of construction. To make that advance, the trustees borrowed money from Westpac, secured by a mortgage over other Trust property. Mr and Mrs Butler have been servicing the Trust’s mortgage.
[12] The trustees plead that the advance of $250,000 has fallen due for repayment, and Mr and Mrs Butler now owe the Trust $246,392.38. Mr and Mrs Butler plead that it was a term of the advance that Mr and Mrs Butler would not be obliged to repay the advance until the property was subdivided and Mrs Butler had received legal title to the land allocated to her.
[13] During 2018, the trustees paid $38,756.79 towards costs associated with the development of Mr and Mrs Butler’s house and surrounds. The trustees plead that the payments were by way of a loan which has fallen due for repayment. Mr and Mrs Butler plead that the payments were gifts to Mrs Butler in her capacity as a beneficiary of the Trust and are therefore not repayable.
[14] Mrs Butler says that from 2017, the trustees were negotiating with a third-party developer interested in purchasing the property and completing a residential subdivision. The contemplated subdivision would include creation of legal title for the land allocated to Mrs Butler.
[15] In about May 2019, Mrs Butler and Mrs Cooke fell out. It is apparent that Mrs Cooke and Mrs Butler were then unable to finalise the terms on which Mrs Butler would receive legal title to the land allocated to her. That led to the trustees issuing these proceedings in 2021.
[16] In December 2022, the parties attended a judicial settlement conference. The parties reached an agreement in principle to settle the issues raised by the proceedings, but subject to execution of formal documentation. Unfortunately, the parties were unable to conclude terms.
[17] On 16 March 2023, Mr and Mrs Butler’s son, Blake, was diagnosed with cancer. This led Mr and Mrs Butler to apply to adjourn the interlocutory application scheduled for 4 April 2023.
[18] On 27 March 2023, counsel for Mr and Mrs Butler sent an email to counsel for the trustees containing the terms of an open offer (the 27 March email), subsequently disclosed to the Court in the memorandum. Before setting out the terms of the offer, the 27 March email stated:
Firstly I want to convey both my own as well as the trustees’ condolences to Penny, Blake and the family. We all have our fingers crossed for a successful treatment.
Secondly, the trustees have decided that it more important for Penny to be focussing on Blake than these proceedings. They do not consider an adjournment to be the best solution as Blake’s illness may be a long-term issue
and an adjournment would leave matters hanging over Penny’s head during a time when she will want to be focussing on her family.
To that end, I set out below a further settlement offer. It is made on an open basis and provides Penny with more than what she is seeking in her counterclaim. It is not to be taken as any concession of legal rights or wrongs, but is made simply to try to allow the family to support Blake as best as possible at this difficult time.
[19]The 27 March email closed as follows:
Can you please take urgent instruction as to in-principle acceptance of the above, pending formal documentation, so that we can advise the two hearing dates can be vacated. If for whatever reason the above offer is not accepted, the trustees would want to retain the trial date given it is not clear what else they could do to resolve the proceedings.
[20]The memorandum, filed the next day, included the following statements:
2.The trustees are deeply saddened to hear of Blake’s condition and extend their thoughts and sympathy to him, Penny and the broader family.
3.Given the news of Blake’s condition, the trustees are firmly of the view that these proceedings must be resolved, for the benefit of both Penny and Blake as well as the trustees (and in particular Janet-Marie, whom is also a primary beneficiary under the Trust).
4.To that end, the trustees have offered to effectively concede to Penny’s counterclaim (and more), on limited conditions. The trustees yesterday put an open offer, the terms of which are set out in the attached schedule. This offer provides more to Penny than what she seeks in these proceedings. It is made without any concession as to the legal positions of the parties, and is made purely to resolve what is an awful situation for Penny and her family. The two conditions are that:
(a)Costs are to lie where they fall; and
(b)Penny is to immediately remove the caveat lodged over the trust’s property, on provision of an undertaking from all trustees to preserve her interest in the land, to allow the trustees to commence a sale process and allow the proposed subdivision of Penny’s property to proceed.
5.The trustees sought a response from Penny and Charles by 11am today, bearing in mind the need to update the Court on the trustees’ position regarding the adjournment. Counsel for the defendants has indicated that a response on the offer is unlikely to be possible until later this week, bearing in mind existing Court commitments.
6.While the trustees’ firm wish is to avoid further litigation in the circumstances, if the offer made is not accepted by the defendants then
they consider they have no option but to proceed to trial and would want the existing trial date to be maintained …
[21]The schedule attached to the memorandum was as follows:
SCHEDULE — OFFER TERMS
1.Penny and Charles will be provided with a section of 2250 m2, with access and services as previously agreed between the parties.
2.The trustees will sell the trust block to a developer who will undertake the subdivision as part of the sale.
3.The trustees will require, as a condition of any sale, that covenants be granted over Penny’s section in relation to multi-storey buildings, roading on her northern boundary, and fencing.
4.Penny will be provided with a copy of the further terms of sale which address the above issues, for her approval. She will not be provided with the entire sale and purchase agreement, nor the identity of the developer, and will not have the ability to object to the sale other than in terms of what she is to be provided above.
5.In addition to this the trust will forgive the following debts:
a.Memorial Ave Loan of $100,000
b.Pool fencing $10,000
c.Concrete driveway $13,684
d.SDC development contribution $14,928
6.The trustees will additionally grant Blake a distribution of $20,000 to assist with any financial hardship while undergoing treatment for his illness.
7.Proceedings to be discontinued with costs to lie where they fall.
8.Penny/Charles agree to remove the caveat immediately upon execution of the settlement agreement, and agree not to lodge another. The trustees will provide an undertaking to Penny/Charles to protect their claimed interest and not to sell the land without Penny/Charles’ approval as provided in (4) above.
[22] On 30 March 2023, counsel for Mr and Mrs Butler sent an email to counsel for the trustees, adding a term to the offer regarding repayment of the advance of $250,000 (the 30 March email).
[23] On 31 March 2023, counsel for Mr and Mrs Butler sent an email to counsel for the trustees, which included the following statements (the 31 March email):
1.If the proposal is acceptable in principle we will forward suggested wording for covenants. We confirm that the previously agreed covenant regarding non-residential buildings is still intended to apply.
2.The caveat will hinder discussions with purchasers. You will be aware that the trust are completely conceding to Penny’s demands in the interests of resolving these proceedings so she can focus her attention on Blake. While the litigation has been hostile, it clear from this substantial concession now offered that the trustees are wanting to assist Penny as best they can in the circumstances …
[24] I was advised by counsel that the parties negotiated for several months, but were ultimately unsuccessful in reaching a settlement. It appears that the sticking point was claims for costs.
The parties’ positions
[25] Counsel for Mr and Mrs Butler, Ms Grieve KC, submitted that the memorandum constitutes an express admission of Mr and Mrs Butler’s counterclaim and an implied admission of all disputed facts in the land proceeding and the debt proceeding. Ms Grieve argued that the admitted facts do not need to be identical to the pleaded facts, nor relate to a particular cause of action. She submitted that judgment can therefore be entered for the terms of the offer.
[26] In the interlocutory application and Ms Grieves’ written submissions, Mr and Mrs Butler relied solely on the terms of the memorandum as evidence of the alleged admission of facts by the trustees. During argument, Ms Grieve sought to bolster Mr and Mrs Butler’s position by reference to the 30 March email and the 31 March email.
[27] The 27 March email and the 30 March email had not been produced in evidence. Counsel agreed to the admission of these emails into evidence, and that the trustees could rely on the emails in support of a submission that the emails are evidence of admissions of facts.
[28] Mr Hearn, counsel for the trustees, argued that the offer was a good faith attempt to end the proceedings in a difficult family situation. The trustees accept that the terms offered effectively conceded the substance of Mr and Mrs Butler’s counterclaim in the land proceeding. However, this concession was without any
admission of liability, as set out in the 27 March email and the memorandum. Mr Hearn submitted that there is no basis to imply admission of any facts.
Legal principles
[29]Rule 15.15 of the HCR provides:
15.15 Judgment on admission of facts
(1)If a party admits facts (in the party’s pleadings or otherwise), any other party to the proceeding may apply to the court for any judgment or order upon those admissions the other party may be entitled to, without waiting for the determination of any other question between the parties, and the court may give any judgment or order on the application as it thinks just.
(2)This rule is not affected by rules 15.16 and 15.17.
[30] Once facts are established by admissions, then the Court must be satisfied that the admitted facts entitle the applicant to a judgment. This requires a cause of action to be made out. The Court may then give judgment as the Court thinks just.
[31] Relief under r 15.15 is discretionary. The following principles apply to the exercise of that discretion:
(a)the applicant must prove what the admissions of fact are;1
(b)an admission must be clear and unambiguous;2
(c)an admission may be expressed or implied;3
(d)relief will only be appropriate if the admitted facts are sufficient to resolve, in their entirety, all matters encompassed in a total claim or in a cause of action;4 and
1 Nigro v Howard (2000) 19 FRNZ 422 (HC) at [15(d)] citing Kelly v Mawson [1981] 1 NSWLR 184 (SC).
2 Shalfoon v Potts [1948] NZLR 1214 (SC) at 1215.
3 Technistudy v Kelland [1976] 1 WLR 1042 (CA) at 1054.
4 Nigro v Howard, above n 1, at [15(e)].
(e)the Court must evaluate how far an admission of fact goes and what order for judgment it entitles the applicant to obtain.5
[32] Judgment on admission of facts is distinct from judgment on admission of a cause of action under r 15.16. The focus under r 15.15 is on the particular facts admitted, rather than liability.
[33] Rule 15.15 is not limited to judgment for a plaintiff or a counterclaim plaintiff. The rule applies where any party admits facts which entitle another party to a judgment. This includes situations where:
(a)a plaintiff admits facts which substantiate an affirmative defence; or
(b)a plaintiff admits facts which allow the Court to conclude that the plaintiff cannot prove a cause of action.
[34] Unlike r 12.2(2), which provides the Court with jurisdiction to give summary judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed, r 15.15 does not require a defendant seeking judgment on admission of facts to satisfy the Court that none of the causes of action in the plaintiff’s statement of claim can succeed. On the contrary, r 15.15 provides the Court with jurisdiction to grant judgment on admission of facts without waiting for the determination of any other question between the parties.
[35] The starting point is an analysis of the pleadings. In respect of a claim, are the facts admitted sufficient to prove all elements of a cause of action? In respect of a defence, are the facts admitted sufficient to justify entry of judgment for the defendant?
[36] In Shalfoon v Potts,6 the plaintiff sought judgment based on admissions contained in a memorandum of terms of settlement signed by counsel for all parties to a proceeding. The terms included an undertaking by the defendant trustees that they
5 P v Bridgecorp Ltd (in rec and in liq) [2013] NZSC 152, [2014] 1 NZLR 195 at [115].
6 Shalfoon v Potts, above n 2.
would retire from the subject trust. The Court was not prepared to treat the undertaking as an admission that the plaintiffs were entitled to an order in the proceeding removing the defendants as trustees. However, it was open to the plaintiffs to seek to enforce the compromise in a separate proceeding.
[37] Shalfoon is authority for the proposition that an offer by a party to act in a certain way, even if accepted, will not amount to an admission of the facts required to be proven to justify relief on the same terms.
[38] In Nigro v Howard,7 a separated couple were in dispute regarding the interpretation of a prenuptial agreement in respect of a property owned by the parties as tenants in common. The defendant applied under the predecessor to r 15.5 for judgment for her initial contribution of $190,000 to the purchase price for the property, which was admitted. Laurenson J held that judgment on admission of facts was available in a proceeding under the Matrimonial Property Act 1976.
[39] Laurenson J held that an interlocutory application for judgment on an admission of facts does not produce an interim or holding position pending the final resolution of a claim. If judgment is given, it will operate as a final judgment in respect of the whole claim or a particular cause of action. The Judge described the purpose of the rule as a practical one:8
… If the pleadings and/or affidavits filed clearly disclose that there is, in fact and law, no dispute between the parties, then there is no point in going to a hearing. The dispute can be resolved on an examination of documentation by judgment at that point.
[40] Laurenson J noted that the claim for $190,000 was not the subject of a separate cause of action, and the $190,000 was but one element involved in the various elements constituting the defendant’s entitlement in the property. Any admission by the plaintiff in relation to the $190,000 did not determine the principal issue, which was the defendant’s total entitlement in the property. The application failed on that basis.
7 Nigro v Howard, above n 1.
8 At [31].
Discussion
Is there a basis to imply admission of all disputed facts arising in the proceedings?
[41] In effect, the trustees seek to elevate the statement made in the memorandum offering to “effectively concede” to Mr and Mrs Butler’s counterclaim, to that of a formal admission of claim under r 15.16 of the HCR.
[42] Plainly, the memorandum does not admit a cause of action. Mr and Mrs Butler therefore argue that the memorandum impliedly admits all disputed facts that found their causes of action, entitling them to judgment under r 15.15.
[43] It is necessary to consider the contents of the 27 March, 30 March and 31 March emails together, and in that context, the terms of the memorandum.
[44] The emails are the primary documents that record the open offer made by the trustees to Mr and Mrs Butler. The purpose of the memorandum was to disclose the terms of the offer to the Court, contained in the schedule. The schedule to the memorandum adds nothing to the terms of the offer. In substance, it reproduces the terms offered in the 27 March email, and as a consequence of the sequence of events, omits the additional term offered in the 30 March email.
[45] It was appropriate for the parties to consent to admission into evidence of the 27 March email and the 30 March email. It would be inappropriate for the Court to determine whether admissions of fact are made out solely by reference to the memorandum, given that the memorandum is a secondary document disclosing an offer made in the emails.
[46] The opening statements from the 27 March email reproduced in para [18] above confirm that the trustees were motivated to make the offer to enable Mr and Mrs Butler to focus on their son Blake, rather than the proceedings. The 27 March email expressly stated that the offer could not be taken as a concession of “legal rights or wrongs”.
[47] The concluding statement in the 27 March email reproduced in para [19] above confirms that the terms of the offer were advanced “in-principle” and “pending formal documentation”.
[48] The 30 March email confirmed that the trustees were offering an additional settlement term regarding the $250,000 advance, and that the additional term was part of “the proposal”.
[49] The 31 March 2023 email reiterated that the “proposal” was being advanced “in principle”.
[50] Although the point was not addressed by counsel, it is arguable that the offer comprised in the emails was not an offer capable of immediate acceptance, but subject to formal documentation. However, para [6] of the memorandum suggests that the trustees considered that their offer was capable of acceptance, which is inconsistent with the language used in the emails. This issue does not affect my analysis.
[51] The statement in para [4] of the memorandum, that “the trustees have offered to effectively concede to Penny’s counterclaim (and more), on limited conditions”, must be read in the context provided by paras [2], [3] and the balance of [4] of the memorandum, and the emails.
[52] Most significantly, para [4] of the memorandum states that the offer was made “without any concession as to the legal positions of the parties”. The legal positions of the parties are established by their pleadings.
[53] The trustees’ reservation of their legal position is confirmed in para [6] of the memorandum, which requested that the existing trial date be maintained.
[54] The objective intention of the trustees revealed in the emails, and disclosed to the Court in the memorandum, was to present an open offer to settle the proceedings without conceding their pleaded legal position in the proceedings.
[55] Where a party has expressly recorded that they do not concede their legal position, and therefore their pleadings, there is no basis to find an express or an implied admission of any facts. On that basis alone, the application must fail in its entirety.
[56] In any event, had the terms of the offer been capable of constituting admissions of fact, those facts would be wholly insufficient to entitle Mr and Mrs Butler to judgment on any of their causes of action in the counterclaim, or the trustees’ causes of action against them. I will briefly explain why that is.
The counterclaim
[57] To be entitled to judgment on their counterclaim, Mr and Mrs Butler must establish sufficient facts to prove one of their causes of action. The three causes of action are: breach of contract, constructive trust and estoppel.
[58] All causes of action rest on the same facts, comprising the terms allegedly agreed in respect of the land allocated to Mrs Butler.
[59] In their statement of claim that commenced the land proceeding, the trustees have admitted that Mrs Butler has an interest in the property. Therefore, the trustees hold this interest on trust for Mrs Butler, either pursuant to an express trust or a constructive trust.
[60] However, Mr and Mrs Butler plead other key terms of the trust, which I paraphrase:
(a)Mrs Butler was to be gifted 2257 m² of land, comprising Lots 791 and 792 on a scheme plan of subdivision;
(b)the trustees would sell the property, excluding Mrs Butler’s land, to a developer for subdivision;
(c)as a condition on any sale of the property by the trustees, the purchaser would be required to formally subdivide Mrs Butler’s land and to
provide reasonable legal access from the southern boundary, and services to the boundary, at the purchaser’s cost; and
(d)Mrs Butler’s land would have the benefit of restrictive covenants preventing the construction of any “multi-dwelling, commercial facilities or public roads within a reasonable distance of the boundary of [Mrs Butler’s] titles”.
[61] These terms of the trust pleaded by Mr and Mrs Butler are dealt with in cls 1–3 of the schedule to the memorandum. For ease of reference, I will repeat those clauses for the purpose of analysis.
[62]Clause 1 of the schedule provides:
1.Penny and Charles will be provided with a section of 2250 m2, with access and services as previously agreed between the parties.
[63] Clause 1 confirms that Mr and Mrs Butler will receive a section of 2250 m², but there is no reference to Lots 791 and 792 of the scheme plan or 2257 m² of area as pleaded by Mr and Mrs Butler. The difference in area may be de minimis, however, it is not possible to confirm that cl 1 of the schedule refers to the same land as pleaded by Mr and Mrs Butler without resort to extrinsic evidence. There is no sufficiently clear and unambiguous admission of fact.
[64] Similarly, the reference to “access and services as previously agreed” does not expressly refer to access from the southern boundary of the property, or services to the boundary of Mrs Butler’s land, as pleaded. Again, resort to extrinsic evidence is required to confirm precisely what the trustees are referring to in cl 1 of the schedule. There is no sufficiently clear and unambiguous admission of fact.
[65]Clause 2 of the schedule provides:
2.The trustees will sell the trust block to a developer who will undertake the subdivision as part of the sale.
[66] There is no pleading by Mr and Mrs Butler as to when, how or on what terms the trustees must sell. These steps would require significant exercises of the trustees’
powers and discretions under the trust deed. There is no basis for a judgment against the trustees on those matters, either on Mr and Mrs Butler’s pleadings, or cl 2 of the schedule.
[67]Clause 3 of the schedule provides:
3.The trustees will require, as a condition of any sale, that covenants be granted over Penny’s section in relation to multi-storey buildings, roading on her northern boundary, and fencing.
[68] The covenants described in cl 3 of the schedule do not accord precisely with the covenants pleaded by Mr and Mrs Butler; “multi-story buildings” is not the same as “multi-dwelling, commercial facilities”. Similarly, “roading on her northern boundary” is not the same as “public roads within a reasonable distance” of the boundary of Mrs Butler’s titles. An obligation to fence is not pleaded. There is no sufficiently clear and unambiguous admission of fact.
[69] In my view, it is not possible for Mr and Mrs Butler to identify sufficient admitted facts to entirely resolve any of their causes of action against the trustees.
The debt proceeding — the first and third causes of action — the alleged debts of
$38,756.79 and $100,000
[70] Mr and Mrs Butler rely on the trustees’ offer to forgive the debts, contained in the 27 March email and repeated in cl 5 of the schedule to the memorandum.
[71] The trustees did not concede or admit that the debts are irrecoverable on the facts pleaded by Mr and Mrs Butler. Any offer to forgive a debt is based on a premise that a debt exists.
[72] The words used in the 27 March email and cl 5 of the schedule to the memorandum are inconsistent with implication of an admission of fact that:
(a)the $38,756.79 was a distribution and not a loan; and
(b)the trustees had represented that they would only require repayment of the $100,000 in the event of dissolution of Mrs Butler’s marriage.
The debt proceeding — the second cause of action — the advance of $250,000
[73]Mr and Mrs Butler admit in their pleadings that they received an advance of
$250,000 from the trustees and that they are required to service the Westpac debt. The only issue is when the advance is due for repayment.
[74]Mr and Mrs Butler plead that:
(a)it was agreed that the advance would be repaid when they obtained title to the land allocated to Mrs Butler, enabling them to raise their own mortgage finance (the first term); and
(b)if the property was not sold or subdivided, “the Trust would maintain its financing arrangement with Westpac for as long as it was needed” (the second term).
[75]The 30 March email states:
Lastly, my email containing the offer did not address the $250,000 loan. For the avoidance of doubt, the proposal in that respect remains the same as previously agreed. I.e. it will be repaid by your clients on or within a short time of issue of the new title in Penny’s/Charles’s name(s).
[76] The term offered in the 30 March email expressly admits the first term but is silent as to the second term. There is no clear and unambiguous admission that both terms were agreed by the parties, which is required to resolve the entire cause of action.
Result
[77]The defendants’ application for judgment on admission of facts is dismissed.
[78] My preliminary view is that costs should follow the event on a 2B basis. If the parties cannot agree costs, then:
(a)the plaintiffs may file a memorandum as to costs of no more than five pages by 13 October 2023;
(b)the defendants may file a memorandum as to costs of no more than five pages by 20 October 2023;
(c)I will determine costs on the papers.
Associate Judge Brittain