Ford v Strangwick - [2020] NZHC 2163

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-557

CIV-2019-096-262 [2020] NZHC 2163

BETWEEN
PETER LESLIE FORD

Plaintiff

AND

ALYSSA AILENE STRANGWICK AND TRAVIS BRADLEY STRANGWICK

Defendants

Hearing: 20 and 21 July 2020

Counsel:

Plaintiff in person

C J Nicholls for Defendants

Judgment:

25 August 2020

JUDGMENT OF SIMON FRANCE J

Introduction

[1] On 15 April 2014 the plaintiff Mr Ford transferred a property to his stepdaughter Ms Alyssa Strangwick and her husband, Mr Travis Strangwick. The motivation behind the transfer was to provide them with an asset against which they could secure borrowings needed for a business venture. The primary trial issue is the basis on which the property was transferred. Mr Ford contends that there was an oral agreement that once the loan was paid off, the house would be returned to him. Mr Ford filed proceedings seeking the return of the house, he having himself paid off borrowings secured against it.

[2]In a related proceeding Mr Ford sought to recover the sum of money – around

$200,000 – he spent to pay off the loan secured against the property. This was filed in

FORD v STRANGWICK [2020] NZHC 2163 [25 August 2020]

the District Court but subsequently consolidated with the above-mentioned High Court proceeding.1

A legal history

[3] The application for return of the property was called before Associate Judge Johnston in March 2019 for judgment by default, the defendants not having entered a defence or taken any other steps in the proceeding.2 The case was advanced on the basis of an oral agreement between the parties on the transfer of the property that:3

(a)Mr Ford would retain beneficial ownership;

(b)the loan secured against the property was not to exceed $100,000; and

(c)the property would be transferred back to the plaintiff once the loan was repaid.

[4] On the basis that Mr Ford’s evidence was not challenged, an order was made transferring title back to Mr Ford but subject to the existing mortgage.4

[5] There were at that time mortgagee sale proceedings under way. Mr Ford avoided these by paying the sum claimed and having the mortgage transferred to him. He was entered on the title as mortgagee. Pursuant to the Associate Judge’s judgment he then had the title transferred into his name, although by then the defendants had applied to set aside the default judgment.5

[6] The defendants, Mr and Mrs Strangwick, advanced their application to set aside on the basis that they had not been served. In relation to that issue, the Court had previously held both defendants had been served.6 Mallon J had found that Mrs Strangwick had been personally served and made an order for substituted service

1      Ford v Strangwick and Strangwick HC Wellington CIV-2019-096-262 and CIV-2019-485-557, 23 March 2020.
2      Ford v Strangwick [2019] NZHC 614.
3 At [4].
4 At [14].
5      High Court Rules 2016, r 15.10.
6      Ford v Strangwick and Strangwick HC Wellington CIV-2018-485-557, 10 December…

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 Ford v Strangwick

Details

AGLC: Ford v Strangwick [2020] NZHC 2163
Case: [2020] NZHC 2163
Decision Date: 25 August 2020

CaseChat Overview and Summary

The High Court of New Zealand considered a dispute between Peter Leslie Ford and Alyssa Ailene Strangwick and Travis Bradley Strangwick over the ownership of a property transferred by Mr Ford to the Strangwicks in 2014. Mr Ford initiated proceedings seeking the return of the property and reimbursement of the money he paid to discharge a mortgage secured against it. The primary issues were whether an oral agreement existed that the property would return to Mr Ford once the mortgage was repaid, and whether the transfer was due to undue influence or an unconscionable bargain. The court concluded that no oral agreement existed and the transfer was an unconditional gift. It also found no undue influence or unconscionable bargain, as Mr Ford was not under any significant disability and was fully capable of making his own decisions. Regarding reimbursement, the court ordered that the property be returned to the Strangwicks subject to a constructive trust in favor of Mr Ford for the amount he paid to discharge the mortgage, plus interest on the money he borrowed to make that payment. The Strangwicks were ordered to reimburse Mr Ford within six months of the judgment date.

Orders