Hansard v Hansard - [2012] NZHC 1159

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-6078 [2012] NZHC 1159

BETWEEN GERALD GUY HANSARD AND DIANA HANSARD AS TRUSTEES OF THE G HANSARD FAMILY TRUST NO. 2
Plaintiffs

ANDDAVID GUY HANSARD AND SHARON GRACE HANSARD AS TRUSTEES OF THE D&S HANSARD FAMILY TRUST Defendants

Hearing: 1 March 2012

Counsel: D Chisholm for Plaintiffs
P Kennelly for Defendants

Judgment: 28 May 2012

RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON (Summary Judgment)

This judgment was delivered by me on 28 May 2012 at 4 pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Lee Salmon Long, PO Box 2026, Shortland Street, Auckland
Kennelly Law, PO Box 607, Orewa

HANSARD AND HANSARD AS TRUSTEES OF THE G HANSARD FAMILY TRUST NO. 2 V HANSARD AND HANSARD AS TRUSTEES OF THE D&S HANSARD FAMILY TRUST HC AK CIV-2011-404-6078 [28
May 2012]

[1] The plaintiffs, Gerald and Diana Hansard, are the trustees of the GG Hansard Family Trust No 2 which was settled on 4 March 1966. They seek summary judgement for the recovery of a debt of $1,222,658 that they say the trustees of the D&S Family Trust owe to their trust. The defendants, David Hansard and Sharon Hansard, are the son and daughter in law of the plaintiffs. They are the trustees of the D&S Family Trust which was settled on 19 September 2003. For convenience I refer to the two trusts as the GG Trust and the D&S Trust.

[2] Effectively, on one side of the dispute that underlies this proceeding are Gerald, Diana and David. David has issued a notice of admission of claim and supports his parents’ claim for summary judgment. On the other side is Sharon, who is now separated from David. She opposes the application for summary judgement.

[3] The argument between the two sides is about the liability of David and

Sharon (as trustees of the D&S Trust) in respect of: (a) A alleged loan of $509,863; and
(b) Their alleged assumption of liability for a debt of $712,795.

[4] Both liabilities are said to have come about when the D&S Trust was settled and David and Sharon re-arranged their financial affairs and those of their printing company, MH Publications Limited. Gerald and Diana say that the company’s liabilities owed to their trust were “converted” to liabilities of the D&S Trust. They say that such re-arrangement was effected by the repayment and re-advance of the
$509,863 loan and the D&S Trust’s assumption of liability for the debt of $712,795. Sharon disputes this.

[5] Sharon says the correct position is not as her parents in law would have it. She says the suggestion that the D&S Trust is liable has only been made since her separation from David. She submits that there are real questions to be tried as to whether monies that the GG Trust originally advanced to her and David and MH Publications:

(a) Could have been “converted” to liabilities of the D&S Trust as she was

not consulted about…

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.

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Details

Case: [2012] NZHC 1159
Decision Date: 28 May 2012

CaseChat Overview and Summary

The case involves a dispute between Gerald and Diana Hansard, trustees of the GG Hansard Family Trust No. 2, and their son David and daughter-in-law Sharon Hansard, trustees of the D&S Hansard Family Trust. The plaintiffs seek summary judgment to recover a debt of $1,222,658, which they claim the D&S Trust owes to their trust. The defendants, David and Sharon, oppose the application for summary judgment, with Sharon disputing her alleged liability for the debt. The main issues are whether there was unanimous consent to the financial arrangements, whether the advances were loans or gifts, and whether Sharon has a tenable defence to the claim. The court found that there are real questions to be tried, particularly regarding the possibility of equitable estoppel, and declined the application for summary judgment. The case will proceed to trial to determine the issues of fact.

The court held that there are real questions to be tried, and declined the application for summary judgment. The Registrar is to allocate an initial case management conference. Costs on the application are reserved.

Orders