Franklyn v Green - [2019] NZHC 2632

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2017-016-000151

[2019] NZHC 2632

BETWEEN
DEBORAH ANNE FRANKLYN

Plaintiff

AND

TRACEY MARIE GREEN

Defendant

Hearing: 8 October 2019 (Heard at Wellington)

Appearances:

S A Keall for the Plaintiff

T M Green (Self-represented Defendant) in Person

Judgment:

15 October 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 15 October 2019 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Deputy Registrar

Counsel: S A Keall, Auckland

Copy To: T M Green, Gisborne

FRANKLYN v GREEN [2019] NZHC 2632 [15 October 2019]

[1] This is a dispute between sisters over approximately $47,000 held in a solicitor’s trust account. That sum is the remaining balance from the proceeds of sale of a house in Gisborne (the Property) which was sold by mortgagee sale.

[2] The plaintiff, Ms Franklyn, seeks a declaration that her sister, Ms Green does not hold any interest in the proceeds of sale. Ms Green asserts an interest on the basis of an agreement with her sister, and contributions she says she made to the house.

[3] The case has followed a difficult procedural path to get to the High Court. It started out as a claim by Ms Green for summary judgment in the Gisborne District Court in relation to belongings that Ms Green said had been stolen by Ms Franklyn and others. Ms Franklyn denied that claim and counterclaimed against Ms Green in the proceeding seeking the declaration now before this Court.

[4] The claim for summary judgment was dismissed,1 and the substantive claim was struck out after Ms Green took no steps.2 However, the District Court Judge determined that the District Court did not have jurisdiction to make a declaration and so transferred the case to the High Court.

[5] Originally, the proceeding was set down to proceed by way of formal proof, but in the course of the proceeding, Ms Green indicated an intention to defend the proceeding and so it was set down for a one-day trial before me.

The facts

[6] There is a great deal in dispute between the parties to this case. To the extent those disputes are relevant to the issues in this proceeding, they are addressed later in this judgment. The non-contentious facts are as follows.

[7] Ms Franklyn was the registered proprietor of the Property. It was transferred to her sole name following a divorce from her husband on 17 April 2014. The Property was subject to a mortgage in favour of Westpac New Zealand Ltd (Westpac).

1 Green v Green [2017] NZDC 28567 (Result); Green v Green [2018] NZDC 3780 (Reasons).
2 Green v Green [2018] NZDC 23067.

[8] In 2016, the Property was rented to Ms Vanessa Pohio. Ms Franklyn and Ms Pohio entered into an agreement on 28 April 2016 (the “Rent to Buy” Agreement). It is common ground that Ms Green arranged for Ms Pohio to enter into the…

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 Franklyn v Green

Details

AGLC: Franklyn v Green [2019] NZHC 2632
Case: [2019] NZHC 2632
Decision Date: 15 October 2019

CaseChat Overview and Summary

The High Court of New Zealand was presented with a dispute between Deborah Anne Franklyn and Tracey Marie Green over approximately $47,000 held in a solicitor's trust account, which represented the remaining balance from the proceeds of the sale of a house in Gisborne. The plaintiff, Ms Franklyn, sought a declaration that her sister, Ms Green, did not hold any interest in the proceeds of the sale. Ms Green asserted an interest based on an alleged agreement with her sister and contributions she claimed to have made to the house. The case had a complicated procedural history, starting as a claim by Ms Green for summary judgment in the Gisborne District Court regarding stolen belongings, before transitioning to a counterclaim by Ms Franklyn for a declaration that Ms Green had no interest in the proceeds of the sale.

The central legal issue was whether there was an agreement between the parties that Ms Green had an interest in the house, and if so, whether this agreement was valid and enforceable. The court also considered whether Ms Green could claim an interest based on contributions she made to the house. The court found that Ms Franklyn was a more credible witness than Ms Green, and that the agreement Ms Green relied on was not valid or enforceable. The court further found that there was insufficient evidence to corroborate Ms Green's claims regarding her contributions to the house. Consequently, the court held that Ms Green had no interest in the proceeds of sale.

In its judgment, the court declared that Ms Green had no interest in the proceeds of sale, and that Ms Franklyn was entitled to the full proceeds of sale held in the solicitor's trust account, less reasonable fees and disbursements. The court awarded Ms Franklyn costs on a schedule 2B basis for steps taken in the High Court, with costs for steps taken in the District Court to be calculated according to the District Court scale. If the quantum of costs could not be agreed upon, the parties were directed to file and serve memoranda of counsel as to costs within specified timeframes, with the costs to be determined on the papers.

Orders