Graham v Graham - [2015] NZHC 1571

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2006-409-002481 [2015] NZHC 1571

IN THE MATTER the Estate of Marjorie Elizabeth Graham

BETWEEN

ELIZABETH JEAN GRAHAM Plaintiff

AND

LEWIS ALEXANDER GRAHAM Defendant

Hearing: 17 June 2015

Appearances:

D P Dravitzki for Plaintiff
C D Eason for Defendant

Judgment:

7 July 2015

JUDGMENT OF DUNNINGHAM J

[1] Mrs Marjorie Graham died on 22 June 1997. Disputes have arisen between her two adult children and, eighteen years later, her estate remains undistributed.

[2] Two years before she died, Mrs Graham made a will which appeared unexceptional in its terms. After payment of her debts, funeral expenses and administration expenses, her assets were to be divided equally between her children, Elizabeth Graham (Elizabeth) and Lewis Graham (Lewis), the parties to this litigation.

[3] Both Elizabeth and Lewis were also appointed as executors and trustees of their mother’s estate. The assets of the estate consisted of the deceased’s residential property at 9 Te Ra Crescent, Diamond Harbour and three undeveloped sections at
29 Council Hill Road, Little River, Banks Peninsula. Unfortunately, the relationship

between Lewis and Elizabeth deteriorated. In 2006, proceedings were issued by

GRAHAM v GRAHAM [2015] NZHC 1571 [7 July 2015]

Elizabeth outlining the issues of dispute between her brother and her, and seeking an order appointing the Public Trustee as sole trustee and executor of her mother’s estate in place of herself and her brother. One of the matters in dispute was that Lewis alleged that he was the sole beneficial owner of the Little River sections and intended commencing proceedings against the estate in relation to the sections.

[4] The Public Trust was appointed as trustee in place of Elizabeth and Lewis in late 2007. Staff at the Public Trust then made enquiries of Lewis to determine what evidence he had to support his claim to ownership of the Little River sections. By late 2010, the Public Trust had decided to issue a notice of disallowance of the claim pursuant to s 75 of the Trustee Act 1956, but the Canterbury earthquakes intervened. No further steps were able to be taken until the Public Trust could recover its files from its former offices.

[5] On 19 September 2013 a notice of disallowance of the claim pursuant to s 75 of the Trustee Act 1956 was issued to Lewis and copied to his lawyer, Mr Eason, the following day. No proceedings were filed by Lewis, but he continued to assert his claim to beneficial ownership of the sections. That led to the current application being brought by the Public Trust seeking an order barring Lewis’s claim pursuant to
s 75 of the Trustee Act 1956.1

[6] The application is opposed by Lewis who, in turn, seeks an order under s 75(3) extending time for making the claim, and an order requiring the Public Trust to transfer the Little River sections to him on the basis he holds a beneficial interest to those sections by reason of a resulting trust in his…

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 Graham v Graham

Details

AGLC: Graham v Graham [2015] NZHC 1571
Case: [2015] NZHC 1571
Decision Date: 7 July 2015

CaseChat Overview and Summary

In the case of Graham v Graham, Lewis Alexander Graham sought to establish a beneficial interest in three undeveloped sections at 29 Council Hill Road, Little River, Banks Peninsula, which were held in the estate of his deceased mother, Marjorie Elizabeth Graham. Lewis contended that he was the sole beneficial owner of the sections due to a resulting trust, while his sister, Elizabeth Jean Graham, opposed the claim. The dispute led to the appointment of the Public Trustee as the sole trustee and executor of the estate. Lewis did not file any proceedings within the three-month period stipulated by section 75 of the Trustee Act 1956 and subsequently sought an extension of time and a declaration of his beneficial interest. The court had to determine whether Lewis's claim should be barred and, if not, whether a beneficial interest in the sections existed in his favour.

The court found that Lewis's claim should not be barred as it appeared reasonably arguable, and he had provided sufficient evidence to support his claim. However, the court was not satisfied that the transfer of the sections to his mother was a voluntary conveyance without consideration, as Lewis had not provided enough evidence to contradict the documentary evidence of a sale agreement for consideration of $2,000. Furthermore, the court held that Lewis would be relying on his own fraud in order to succeed, as the transfer had a fraudulent purpose in view, and the equitable remedy of a resulting trust was not available to him in those circumstances. Consequently, Lewis's claim for a beneficial interest in the three Little River sections was declined. Costs were reserved, and the parties were directed to exchange costs memoranda if they could not agree on the costs.

Orders