Goodwin v Rocket Surgery Ltd - [2013] NZCA 172

IN THE COURT OF APPEAL OF NEW ZEALAND

CA748/2012
[2013] NZCA 172

BETWEEN WAYNE ERNEST GOODWIN AND MARY ELIZABETH GOODWIN
Appellants

AND ROCKET SURGERY LIMITED
Respondent

Hearing: 24 April 2013

Court: Arnold, Harrison and White JJ

Counsel: A C Beck for Appellants
D P Robinson for Respondent

Judgment: 22 May 2013 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe orders made in the High Court granting summary judgment and consequential relief including costs are set aside.
CThe interim orders made in this Court on 18 December 2012 and 14 February 2013 are discharged.
DThere is no order for costs in this Court.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

This appeal raises the essentially factual question of whether on an application for summary judgment by the respondent, Rocket Surgery Ltd (RSL), Associate Judge Osborne was correct to order the sale of a property formerly owned by the appellants, Wayne and Mary Goodwin (the Goodwins).[1]
[1] Rocket Surgery Ltd v Goodwin [2012] NZHC 2752.
On 18 December 2012 and 14 February 2013 this Court made interim orders staying execution of the judgment pending further order of this Court.

Facts

The Goodwins owned a residential property at Mosgiel, near Dunedin, known as “Chelmsford”. They fell into financial difficulties and faced a sale by the mortgagee, Westpac Banking Corporation.[2]
[2]Mr Goodwin was declared bankrupt before the appeal was heard but the point was academic given that Mrs Goodwin’s standing is unaffected.
The Goodwins’ son-in-law, Campbell Harvey, agreed to assist in saving Chelmsford from sale. Mr Harvey and some colleagues were shareholders in RSL, a small private company. RSL agreed to borrow a sufficient sum to buy the property at the mortgagee’s sale and to cover financing costs for a year after purchase while the Goodwins recovered financially. The ultimate purpose was to enable the Goodwins to buy Chelmsford back in their own names or through a nominee.
It was agreed in principle that RSL would derive some reward for providing the finance. Apart from an understanding that when repurchasing the Goodwins would repay RSL all outgoings spent on the property, they were also to pay a fee for providing the finance. That fee was never settled but the parties discussed figures ranging between $20,000 and $40,000. If the Goodwins were unable to repurchase, Chelmsford would be sold and RSL would recover its expenditure. Unfortunately the parties never settled the terms and conditions of an agreement.
In accordance with this informal arrangement RSL purchased the property at sale by Westpac in April 2010. But thereafter relations between the parties gradually deteriorated. Attempts to settle written terms of an agreement were unsuccessful. Proposals and counter proposals were exchanged in an environment of increasing acrimony. The Goodwins did not repurchase the property within a year. In the event, in May 2012, more than two years after the acquisition, RSL filed a proceeding against the Goodwins in the High Court. The company sought summary judgment for a range of…

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 Goodwin v Rocket Surgery Ltd

Details

AGLC: Goodwin v Rocket Surgery Ltd [2013] NZCA 172
Case: [2013] NZCA 172
Decision Date: 22 May 2013

CaseChat Overview and Summary

The appeal in Goodwin v Rocket Surgery Ltd was heard by Arnold, Harrison and White JJ in the New Zealand Court of Appeal. The Goodwins appealed against the decision of the High Court to grant summary judgment to Rocket Surgery Ltd (RSL), and the subsequent order for the sale of a residential property formerly owned by the Goodwins. The legal issues the court was required to decide were whether the Associate Judge was correct to order the sale of the property, and whether the Associate Judge correctly granted summary judgment in favour of RSL. The court found that the Associate Judge was incorrect to order the sale of the property and to grant summary judgment in favour of RSL. The court held that RSL's claim was not suitable for determination by summary judgment as the terms of the alleged trust were in dispute, and there was no evidence of a clear intention to create an express trust. The alternative of a constructive or resulting trust was also unavailable. The court set aside the orders made in the High Court granting summary judgment and consequential relief including costs, and discharged the interim orders made in this Court on 18 December 2012 and 14 February 2013. The Goodwins' appeal was allowed, and there was no order for costs in this Court.

Orders