Henry v Henry - [2023] NZHC 1601

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2022-488-000102

[2023] NZHC 1601

BETWEEN
LENA MELANIE HENRY, HELEN ELIZABETH SUSAN TE HIRA, and
TAUPUHI PIRIPONO HENRY as trustees of the Awhi Trust

Plaintiffs

AND

LIANE TRACY HENRY

Defendant

Hearing: 6 June 2023

Appearances:

T K Cunningham-Adams for the Plaintiffs S Wroe for the Defendant

Judgment:

26 June 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 26 June 2023 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

AJO Legal Ltd, Auckland Evolution Lawyers, Auckland

S Wroe, Auckland

HENRY v HENRY [2023] NZHC 1601 [26 June 2023]

Introduction

[1] The trustees of Awhi Trust (Lena Henry, her partner Helen Te Hira, and Lena’s son Taupuhi Henry) bought a property in Whangārei from Lena’s mother, Elizabeth Anaru,1 and her husband Morgan Peeni. Lena’s sister, Liane Henry, occupied the property under an informal arrangement with Elizabeth and Morgan. The trustees apply for an order that Liane vacate the property, saying they have asked her to leave, and she has refused. They also seek judgment against Liane for loss of rental profits, and their pre-litigation legal costs.

[2] The trustees apply for summary judgment of their claim. To succeed, they must establish that Liane has no reasonably arguable defence.

[3]The issues are:

(a)Does Liane have a reasonably arguable defence being:

(i)an in personam claim against the trustees for knowing receipt; or

(ii)a claim for set-off of amounts paid by her to Elizabeth and Morgan and passed on to the trustees?

(b)Should summary judgment be refused because it would be unfair to deny Liane the benefit of discovery and the opportunity to cross-examine the trustees; and her third-party claims against Elizabeth and Morgan should be determined at the same time as the trustees’ claim against her?

Background facts

[4] In January 2015, Elizabeth and Morgan lent Liane funds to enable her to purchase a property on Cooke Street in Whangārei for her to live in with her daughter. Liane did not have enough money to buy the property herself at that time.

1 Formerly Elizabeth Henry.

[5] Originally Liane was to become the legal owner of the property. The agreement for sale and purchase records the purchaser as Liane. The agreed purchase price was $220,000. Liane paid the deposit of $20,000 with funds lent to her by Elizabeth and Morgan.

[6] For reasons that are unclear, Liane later nominated Elizabeth and Morgan to be the purchasers. Elizabeth says that she does not understand how or why that occurred. She says that she did not realise that she and Morgan jointly owned the property until five years later, in 2020. Elizabeth paid the balance of the purchase price i.e., $200,000.

[7] Liane arranged for substantial renovations to be done on the property before she moved into it. In her first affidavit she deposes that she paid a total of around
$220,000 in relation to the property,…

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 Henry v Henry

Details

AGLC: Henry v Henry [2023] NZHC 1601
Case: [2023] NZHC 1601
Decision Date: 26 June 2023

CaseChat Overview and Summary

The High Court of New Zealand, Whangarei Registry, was presented with a case where the trustees of the Awhi Trust (Lena Melanie Henry, Helen Elizabeth Susan Te Hira, and Lena's son Taupuhi Piripono Henry) sought an order for Liane Tracy Henry to vacate a property in Whangarei. The trustees claimed that they had asked Liane to leave the property, and she refused. Additionally, they sought judgment against Liane for loss of rental profits and their pre-litigation legal costs. The trustees applied for summary judgment of their claim, which required them to establish that Liane had no reasonably arguable defence.

The primary legal issues the court had to decide were whether Liane had a reasonably arguable defence against the trustees' claim and if summary judgment should be refused because it would be unfair to deny Liane the benefit of discovery and the opportunity to cross-examine the trustees. The court also had to consider whether Liane's third-party claims against Elizabeth and Morgan should be determined at the same time as the trustees' claim against her.

The court found that Liane had a reasonably arguable defence based on a claim against the trustees for knowing receipt. It was arguable that Elizabeth and Morgan held legal ownership of the property on trust for Liane, and the trustees received legal title to the property knowing that they were receiving trust property. The trustees' application for summary judgment was dismissed, and costs were reserved in accordance with the principle in NZI Bank Ltd v Philpott. The court directed counsel to confer and file a joint memorandum within 15 working days proposing the next procedural directions to progress the trustees' substantive claim through to trial.

Orders