Cooke v Butler - [2022] NZHC 2687

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-152

[2022] NZHC 2687

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
Plaintiffs

AND

AND

PENNY LEE-ANN BUTLER

First Defendant

CHARLES ANDREW AXELSEN BUTLER
Second Defendant

continued….

Hearing: 22 September 2022

Appearances:

R A Hearn and M R Gibson for Plaintiffs S M Grieve and C Mo for Defendants

Judgment:

18 October 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

COOKE v BUTLER [2022] NZHC 2687 [18 October 2022]

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

PENNY LEE-ANN BUTLER
First Defendant

CHARLES ANDREW EXELSEN BUTLER
Second Defendant

[1] Janet and her daughter Penny have fallen out over the nature of the assistance provided to Penny by a trust of which Janet is a trustee, the Cooke Family Trust (the Trust).

[2]In substance, this family dispute involves two broad issues. The first is whether

$100,000 provided to Penny by the Trust was a loan or not. The second issue concerns the terms of an oral agreement between the Trust and Penny and her husband, Charles, which led to them building a home on unsubdivided land owned by the Trust. The Trust accepts Penny and Charles have an interest in the land where the house is built albeit the nature of that accepted interest is not altogether clear. The disagreement is over the nature of the interest, its area and when further funds advanced by the Trust to assist with the build are repayable.

[3] The dispute concerning the $100,000 was subject to an unsuccessful summary judgment application by the Trustees.1 Summary judgment was sought because Penny had signed a deed of acknowledgement of debt. The application was declined as there was some support in the evidence for Penny’s claim Janet told her the “loan” would only be repayable if Penny separated from her husband, Charles.

1 Cooke v Butler [2021] NZHC 2014.

[4] As to the second issue, as I have said, the Trustees accept Penny and Charles built the house with their agreement but little else about the arrangement is agreed.

[5] Both sides seek further and better discovery. Proceeding CIV-2021-409-152 concerns the land dispute, CIV-2021-409-124 is the Trustees’ debt claim.

What must be shown to obtain further discovery

[6] The principles are not in dispute. Both counsel referred to the four stage approach from Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd.2 Those requirements are:

(i)Are the documents relevant?

(ii)Are there grounds for belief that the documents exist?

(iii)Is discovery of the documents proportionate considering the time and cost of discovery against the value of the documents?

(iv)Weighing and balancing those factors, is an order appropriate?

[7] A further application is made…

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 [2022] NZHC 2687
Case: [2022] NZHC 2687
Decision Date: 18 October 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Cooke v Butler involves a dispute between Janet Cooke, Sharon Cooke, and Stanley Barker, as trustees of The Cooke Family Trust, and Penny Lee-Ann Butler and Charles Andrew Axelsen Butler. The case revolves around two primary issues: the nature of a $100,000 payment made by the Trust to Penny and the terms of an oral agreement related to the construction of a house on Trust-owned land. The Trustees accept that Penny and Charles have an interest in the land but disagree on the nature, area, and repayment terms of this interest.

The court examined the application for further and better discovery, focusing on the relevance, existence, proportionality, and appropriateness of the documents sought. The court found that documents relating to the $100,000 payment to Penny's brother, Andrew, were relevant to the extent that they shed light on the nature of the $100,000 provided to Penny. Bank statements showing payments made towards the construction of Penny and Charles' home on the Trust property were deemed relevant, as they would help determine whether there was a sufficient change of position by Penny and Charles to render departure from the oral agreement unconscionable. However, bank statements showing the application of the $100,000 in 2015 were declined as they were not a core issue in the case.

Regarding privilege, the court found that the joint interest exception applied to certain documents, meaning that the Trustees could not maintain privilege against Penny. The court determined that the joint interest exception came to an end on the issue of the respective sets of proceedings, and that different principles should not apply to the application of the joint interest exception where a trustee sued a beneficiary. The court also found that the joint interest exception applied to documents concerning the subdivision dispute until sometime in late 2020. The court reserved leave to apply further in respect of the joint interest exception application.

In conclusion, the court granted discovery of certain documents relating to the $100,000 payment to Andrew and the construction of Penny and Charles' home on the Trust property. The court declined discovery of bank statements showing the application of the $100,000 in 2015 and reserved costs for further determination.

Orders