Fraser v Fraser - [2017] NZHC 1055

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2987 [2017] NZHC 1055

UNDER
Section 22 of the Trans-Tasman

Proceedings Act 2010

IN THE MATTER

of an application for stay

BETWEEN

ROBERT LINDSAY FRASER AND GENENE FLORENCE FRASER Plaintiffs

AND

ROBERT WILLIAM FRASER AND DEBORAH JEAN FRASER Defendants

Hearing: 8 May 2017

Counsel:

CR Andrews and KK Kommu for plaintiffs
GA Cooper for defendants

Judgment:

19 May 2017

JUDGMENT OF FITZGERALD J

[On application for stay pursuant to s 22 of the Trans-Tasman Proceedings Act
2010]
This judgment was delivered by me on 19 May 2017 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: McVeagh Fleming, Auckland
Cavell Leitch, Christchurch

Fraser v Fraser [2017] NZHC 1055 [19 May 2017]

Introduction

[1] This is a somewhat sad proceeding. Mr Robert Fraser, together with his wife Genene Fraser, is suing Robert’s brother, Ronald Fraser and his wife, Deborah Fraser. Robert and Genene seek to recover from Ronald and Deborah a principal amount of NZ$255,783.16 (plus interest of NZ$12,334.08 and accruing interest), pursuant to what they allege to be a loan transaction between the respective couples.

[2] Robert and Genene are based in Auckland. Ronald and Deborah are based in Perth, Western Australia. As is self-evident, these proceedings were commenced against Ronald and Deborah in the High Court in Auckland. Ronald and Deborah now apply pursuant to s 22 of the Trans-Tasman Proceedings Act 2010 (“Act”) for a stay of this proceeding, on the basis that an Australian court is the more appropriate court for the proceeding.

Factual background

[3] It appears that, until events giving rise to this proceeding, the brothers and their respective wives enjoyed a good relationship.

[4] Robert and Genene have lived in Auckland for at least the last 30 years. Ronald and Deborah originally lived in Christchurch, where between about 1985 and
2004 they undertook a number of subdivisions and residential building projects. Ronald explains in his affidavit in support of the application for a stay that the majority of these projects were building “spec” (i.e. speculative) houses. These projects were carried out through two companies, namely Debron Developments Ltd and Linron Developments Ltd.

[5] Ronald explains that in 2004, he and Deborah relocated to Perth to be closer to their daughters and grandchildren. They are now the shareholders and directors of two Australian companies:

(a) Abingdon Court Consulting Pty Ltd (“Abingdon Court”); and

(b) Debron Homes Pty Ltd (“Debron Homes”).

[6] In his affidavit, Ronald states that in 2011 financial year, Abingdon Court purchased two sections in Perth for potential further development. He says that at the beginning of 2013, the sections were valued at around AUD$300,000 each.

[7] The next steps in the chronology are contentious, and I am not in a position, nor required, to make any findings in relation to them on this application.

[8] Ronald says that in late 2012, he and his brother Robert had a series of conversations about the possibility of working…

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 Fraser

Details

AGLC: Fraser v Fraser [2017] NZHC 1055
Case: [2017] NZHC 1055
Decision Date: 19 May 2017

CaseChat Overview and Summary

This case involves a dispute between two brothers, Robert and Ronald Fraser, and their respective wives, Genene and Deborah Fraser. Robert and Genene are suing Ronald and Deborah to recover a principal amount of NZD$255,783.16 plus interest, which they claim is owed to them as a result of a loan transaction. Ronald and Deborah, however, argue that the relationship between the parties was more akin to a loose partnership and not simply a loan transaction. The case was commenced in the High Court in Auckland, but Ronald and Deborah applied for a stay of the proceedings under section 22 of the Trans-Tasman Proceedings Act 2010, arguing that an Australian court is the more appropriate court for the proceeding.

The court considered the factors set out in section 24(2) of the Act, including the places of residence of the parties and witnesses, the place where the subject matter of the proceeding is situated, any agreement between the parties about the court or place in which those matters should be determined, the law that it would be most appropriate to apply in the proceeding, whether a related or similar proceeding has been commenced against the defendant or another person in a court in Australia, the financial circumstances of the parties, and any other matters that the court considers relevant. The court found that the matter was relatively finely balanced, but tipped slightly in favour of the Australian courts being the appropriate forum, predominantly on the basis of the likelihood of a broader range of matters being canvassed in evidence for the defence. The court accordingly granted the defendants' application for a stay pursuant to s 22 of the Act.

The court also considered costs, and indicated that if the parties were unable to agree on costs, each party could submit a memorandum on costs within ten working days of the judgment, upon which the court would determine costs on the papers.

Orders