Fraser v Butler - [2017] NZHC 120

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 defendant

Judgment:

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…

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 Fraser v Butler

Details

AGLC: Fraser v Butler [2017] NZHC 120
Case: [2017] NZHC 120
Decision Date: 10 February 2017

CaseChat Overview and Summary

The case of Fraser v Butler involved a dispute over the ownership and division of a property. The plaintiff, Neil Fraser, was incapacitated and represented by his litigation guardian, Ross William Fraser. The defendant, Marilyn Teresa Butler, applied to strike out the claims made against her by Mr Fraser. The central issue was whether Mr Fraser qualified as a "co-owner" under the Property Law Act 2007, and therefore had the standing to apply for relief under section 339 of the Act. The court found that Mr Fraser did qualify as a "co-owner" for the purposes of section 339, and declined to strike out his claim under that section of the Act. The court also found that Mr Fraser's claim for specific performance of the deed was reasonably arguable, and declined to strike it out. However, the court did not think it reasonable that quantification of the claimed losses could be left to be dealt with at trial, and ordered Mr Fraser to provide further particulars of the nature and amount of losses alleged to have been caused by Ms Butler for which damages are claimed, within 45 working days of the date of this judgment. The application to strike out Mr Fraser's claims was dismissed, and Mr Fraser was awarded costs on the strike-out application on a 2B basis, reduced by 10 per cent to reflect Ms Butler's partial success in obtaining an order for particulars of Mr Fraser's damages claim.

Orders