Craig v Donaldson - [2012] NZHC 2224

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-000811 [2012] NZHC 2224

BETWEEN DAVID LEONARD CRAIG Plaintiff

ANDJOANNE MARGARET DONALDSON Defendant

Hearing: 7 and 8 August 2012

Appearances: M J Wallace for Plaintiff
C A Corlett for Defendant

Judgment: 31 August 2012

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on
31 August 2012 at 10.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Rhodes & Co., PO Box 13 444, Christchurch
Parry Field Lawyers, PO Box 1725, Christchurch Mail Centre, Christchurch 8140

CRAIG V DONALDSON HC CHCH CIV-2011-409-000811 [31 August 2012]

[1] Both the plaintiff and the defendant were victims of three frauds. The plaintiff lost $421,605.86. The defendant lost a much lesser sum, $28,600. The plaintiff now sues the defendant to recover his loss. The plaintiff made 16 different payments, being payments that he alleges he either made to or on behalf of the defendant but always as loans to the defendant. It is the plaintiff ’s case that the defendant agreed to be liable to repay all of these advances, whether or not the defendant received the overseas funds she had been promised by the fraudsters.

[2] The plaintiff and the defendant were friends. The defendant’s husband had met the plaintiff at the annual Hanmer Heat Motocross event that the defendant’s family ran. The plaintiff was a senior administrator in the sport of motocross at the time and regularly travelled through New Zealand attending motocross events. He would come and stay with the defendant’s family in Hanmer, a small village in North Canterbury, for up to a week every two or three months. He and the defendant’s husband had a friendship built around their common interest in motocross and machinery. He also became friends with the defendant. It was in the context of this friendship that in mid-2006 the defendant had told him of the e-mails that the defendant had been receiving from the Mayo family. They had talked of the plaintiff accompanying her on the trip to South Africa. It was in this context that the defendant made her first request that he might assist her in dealings with the Mayo family by providing the legal fees of the equivalent of NZ$7,230 for her to take to South Africa to obtain the release of the funds, she having spent her money buying the airfare.

[3] The subsequent pattern of events was that the plaintiff paid the substantial sums requested and the defendant paid small and minor sums.

The Mayo fraud

[4] In 2006 the defendant received an e-mail from a Mr Victor Mayo in South Africa. Mr Mayo told the defendant that he was a member of a Zimbabwean family who were refugees in South Africa. They had been farmers in Zimbabwe but had had had their land taken away under the rule of Robert Mugabe. However, they had been able to get their money, US$10.7 million (“the funds”), out of Zimbabwe at the time they…

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 Craig v Donaldson

Details

AGLC: Craig v Donaldson [2012] NZHC 2224
Case: [2012] NZHC 2224
Decision Date: 31 August 2012

CaseChat Overview and Summary

In the case of Craig v Donaldson, the plaintiff, David Craig, sued the defendant, Joanne Donaldson, to recover money he had lost through a series of frauds. The plaintiff alleged that he had made multiple payments to the defendant, which were loans that the defendant had promised to repay regardless of whether the funds were released. The defendant denied that any such promises were made. The court was required to determine whether the plaintiff's payments to the defendant were loans repayable by the defendant, and if so, to what extent.

The court held that while the plaintiff had proved a contractual obligation on the part of the defendant to repay him the first payment of $7,230, there was no evidence to support a legally enforceable contract of loan for the subsequent payments. The court found that the plaintiff had been caught up in the fraud and had made the later payments in the hope of recovering all of his losses. The court dismissed the plaintiff's claim for the remaining amounts and awarded the plaintiff judgment for the $7,230 with costs reserved.

Orders