Gardiner v Dyer - [2018] NZHC 3052

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2013-485-693

[2018] NZHC 3052

BETWEEN JULIA FRANCES GARDINER AND PETER JOHN CLARK
Plaintiffs

AND

WAYNE DYER

Defendant

Hearing: 21 November 2018

Counsel:

F M Gush for Plaintiffs

R J B Fowler QC for Defendant

Judgment:

23 November 2018

JUDGMENT OF ELLIS J

[1] The plaintiffs are the Trustees of the Karaka Trust. One of the trustees, Ms Gardiner, was in a relationship with Mr Dyer for a number of years, until their separation in June 2012. Mr Dyer was once, but is no longer, also a Trustee. At the time of the couple’s separation, the Trust’s principal asset was the property in which Mr Dyer and Ms Gardiner had lived during their relationship. Mr Dyer was (in his Trustee capacity) one of the registered proprietors of the property.

[2] The Trust and its assets have formed a central part of an ongoing dispute between Ms Gardiner and Mr Dyer which has recently been the subject of a lengthy judgment in this Court, on appeal from the Family Court (the Family Court proceedings).1 It is fair to say that while Mr Dyer was partially successful at first instance, he was ultimately unsuccessful in this Court, on appeal.

1 Gardiner v Dyer [2018] NZHC 355.

GARDINER AND CLARK v DYER [2018] NZHC 3052 [23 November 2018]

[3] Leave to appeal the High Court judgment, on a limited basis, was granted by Churchman J on 31 October 2018.2 The aspect of the proposed appeal on which leave was granted related to Mr Dyer’s claim under s 186 of the Family Proceedings Act 1980.3

[4] The present proceedings were filed in this Court by Ms Gardiner in 2013. They were brought because Mr Dyer was, at that point, refusing to consent to the sale of the property owned by the Trust. She sought a vesting order under the Trustee Act 1956. Mr Dyer opposed the making of such an order and filed a counterclaim challenging the Trust’s validity and, alternatively asserting (inter alia) a constructive trust over the Trust’s property.

[5] On 25 March 2014, this Court was advised that that matter had settled, although there were “residual issues between the parties which need to be argued at some stage in future”.4 Counsel also advised:
… the parties to this proceeding are also parties to proceedings in the Family Court, and the more likely outcome is that all remaining issues in this proceeding will be resolved in the context of the Family Court proceeding.

[6] As a result, a number of orders adjourning these proceedings were made. In the meantime, the Family Court proceedings progressed.

[7] It was on receipt of Churchman J’s judgment on appeal in those proceedings that Mr Dyer advised that he wished to revivify his counterclaim in these proceedings. Upon receipt of that notification, Ms Gardiner filed applications to strike out the counterclaim and for security for costs.

[8] On…

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 Gardiner v Dyer

Details

AGLC: Gardiner v Dyer [2018] NZHC 3052
Case: [2018] NZHC 3052
Decision Date: 23 November 2018

CaseChat Overview and Summary

Gardiner and Clark, the Trustees of the Karaka Trust, sought to revive a claim against Dyer for a vesting order of the Trust's principal asset. The Trust's principal asset was the property in which Dyer and Gardiner had lived during their relationship. The dispute arose out of a long-running dispute between the parties which had already been subject to lengthy proceedings in the Family Court and an appeal to the High Court. The present proceedings had previously been settled, but Dyer wished to pursue a counterclaim in these proceedings if his appeal to the Court of Appeal was unsuccessful. Gardiner applied to strike out the counterclaim and for security for costs. The court was required to determine whether an order for security for costs should be made, and if so, what amount and under what terms. The court found that the threshold for an order for security was met, as it was reasonably likely that Dyer would be unable to pay costs if he were unsuccessful. The court also found that ordering security for costs was warranted to protect the interests of the plaintiffs and to avoid the duplication of litigation. The court ordered that Dyer should pay security in instalments, contingent on the outcome of his appeal to the Court of Appeal. The court further ordered that if Dyer failed to pay the security in accordance with the directions, the proceedings would be stayed.

The court ordered that the defendant, Dyer, pay security for costs in instalments contingent on the outcome of his appeal to the Court of Appeal. If Dyer fails to pay the security in accordance with the directions, the proceedings will be stayed.

Orders