IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CIV-2014-416-23 [2017] NZHC 120
BETWEEN NEIL ANDREW FRASER
BY HIS LITIGATION GUARDIAN ROSS WILLIAM FRASER
Plaintiff
AND
MARILYN TERESA BUTLER Defendant
Hearing: 14 December 2016 (via AVL) Counsel:
M A Terekia for plaintiff
N Weatherhead for defendantJudgment:
10 February 2017
JUDGMENT OF ASSOCIATE JUDGE SMITH
[1] The defendant (Ms Butler) applies to strike out the claims made against her by Mr Fraser. Mr Fraser is incapacitated, and he sues by his litigation guardian, Mr Ross William Fraser, who was appointed by order made by the Court on
26 November 2015.
Background
[2] Mr Fraser’s claims are set out in an amended statement of claim dated
13 October 2016. Mr Fraser was originally the owner of a property comprising approximately 86 ha situated in Waimata Valley Road, Waimata Valley, Gisborne (the property). In August 1993 Mr Fraser transferred a half-share in the property to his wife, Katrina Fraser.
[3] Mrs Fraser died intestate in early 2005. Her estate was administered by the
Public Trust Office (the Public Trust).
FRASER v BUTLER [2017] NZHC 120 [10 February 2017]
[4] Mr Fraser was adjudicated bankrupt in or about late 2006 or early 2007, and his one-half share in the property vested in the Official Assignee. The Official Assignee obtained an order from the High Court that the property be sold to satisfy Mr Fraser’s debts, but arrangements were worked out between Mr Fraser and Ms Butler under which a sale by the Official Assignee was averted.
[5] First, the Public Trust indicated that, on payment of the sum of $60,711 which was required to cover the Public Trust’s obligations and costs associated with the administration of the late Mrs Fraser’s estate, the Public Trust would be prepared to transfer the late Mrs Fraser’s one-half share in the property to Mr Fraser. The second leg of the arrangement was an agreement by Ms Butler to pay both the
$60,711 sought by the Public Trust and the amount owing to Mr Fraser’s creditors in his bankruptcy. In exchange for the payments she would make, Ms Butler would be entitled to a 29 per cent interest in the property.
[6] On 1 June 2007 Mr Fraser and Ms Butler entered into a deed recording their arrangement. A copy of the deed was produced by consent at the hearing.
[7] The deed records the background as described above, including the particular amounts required to satisfy the Public Trust ($60,711) and the Official Assignee in respect of Mr Fraser’s creditors ($84,513.37). A mortgage to the ANZ Bank was registered on the title, and it would be necessary to repay that mortgage. The deed recorded that Mr Fraser was unable to raise any money to satisfy those liabilities, but that Ms Butler had obtained a loan offer from the Bank of New Zealand (the BNZ) for $190,000. Both parties understood, and the deed recorded, that it would be necessary to register a mortgage on the property to secure the…
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- AGLC
- Fraser v Butler [2017] NZHC 120
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- [2017] NZHC 120
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