Heremia v Webb
[2025] NZHC 840
•11 April 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2024-488-000044
[2025] NZHC 840
BETWEEN KAREN ELLEN HEREMIA, SUZANNE CHRISTINE WHITEHEAD and BRUCE
JAMES WEBB as trustees of the Webb Investment TrustPlaintiffs
AND
ANGELINA MACAOAY WEBB
Defendant
Hearing: 2 December 2024 Appearances:
D P Adams for the Plaintiffs M Wills for the Defendant
Judgment:
11 April 2025
JUDGMENT OF ASSOCIATE JUDGE COGSWELL
This judgment was delivered by me on 11 April 2025 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Wills Westenra, Whangarei WRMK Lawyers, Whangarei
HEREMIA & Ors v WEBB [2025] NZHC 840 [11 April 2025]
Introduction
[1]The plaintiffs seek summary judgment against the defendant.
[2] At the commencement of the hearing, the plaintiffs advised that they have now confined their application for summary judgment to the second cause of action in their statement of claim, being the breach of contract cause of action. It does not appear that the defendant was advised of this ahead of the hearing. It should have been.
[3] The plaintiffs’ statement of claim pleads two causes of action against the defendant:
(a)Constructive Trust—a declaration that the defendant holds the property, the subject of these proceedings, as trustee for the plaintiffs, and ancillary orders.
(b)Breach of contract—an order for specific performance requiring the defendant to comply with the terms of an agreement entered into on 15 March 2010, or, in the alternative, damages for breach of that agreement.
[4]The defendant opposes the plaintiffs’ application for summary judgment.
[5]This judgment determines the plaintiffs’ application for summary judgment.
Background
[6] At its heart this dispute is one between the adult children of Ian Webb (Ian), who is deceased, and Ian’s second wife, Angelina Macaoay Webb (Angie) who is his widow.
[7] The dispute concerns interests in a property at 13 Roto View, One Tree Point, Northland (Roto View).
[8] The factual background is complicated by incomplete contemporaneous documentation and the defendant’s lack of understanding about the various transactions in issue in this proceeding. Her native tongue is not English, but is Tagalog, a language of the Philippines.
[9] This incomplete documentary record is not assisted by the death of Ian, who had all of the relevant information.
[10] Ian and Angie commenced their relationship in May 1995 and were married on 28 October 1995. Their marriage lasted until Ian’s death in September 2021, a relationship of 26 years.
[11] At the date of their wedding, Ian was registered as the owner as to a half share, with Trevor Webb and Trevor’s wife Elizabeth as the other half share owners, in a property at 24 Rata Street, New Lynn, Auckland (Rata Street).
[12] Rata Street was purchased in July 1995. Angie says that Rata Street was bought by her and Ian. The purchase price was $100,000. Angie was not registered on the title to Rata Street. She says that she contributed to mortgage payments.
[13] On 21 August 1997, Ian settled the Webb Investment Trust. The trustees of that trust were Ian and his son, Bruce Webb.
[14]The beneficiaries under the trust are described as:
IAN WEBB and the children and grandchildren of IAN WEBB, and their respective spouses, if any (all of whom are collectively in this Deed called “the Beneficiaries”)…
[15] Angie says that she had no knowledge or understanding of the trust arrangements or the transfer of interests in the property at Rata Street. Her evidence is that “Ian did not involve me in legal matters.” The Record of Title does not record her as a registered proprietor but her evidence is that she had an interest in Rata Street.
[16] On 8 December 1997 Ian’s half-share in Rata Street was transferred to the Webb Investment Trust. The other half share in the property held by Trevor and
Elizabeth Webb was transferred into the Webb Investment Trust later, in February 1999. These transfers did not recognise Angie’s interest in Rata Street.
[17] In December 1998, Ian and Angie jointly refinanced the mortgage over Rata Street with Westpac. They borrowed a further sum of $100,000. Both were obligors.
[18] This is despite the fact that Angie was not on the Record of Title as a registered proprietor of Rata Street.
[19] As discussed below, she was arguably not a beneficiary of the Webb Investment Trust either, as she is not a spouse of Ian’s children or grandchildren, the beneficiaries being defined as:
IAN WEBB and the children and grandchildren of IAN WEBB, and their
respective spouses… (emphasis added)
[20] A further transfer of Rata Street to Carousel Turntables Limited and Ian took place on 13 December 2002.
[21] Ultimately Rata Street was sold for $502,000 in April 2007. The vendor was described as “Ian Webb as Webb Family Trust.” It is not clear if that is another trust or just a misstatement of the Webb Investment Trust.
[22] There is no documentation from the Webb Investment Trust recording any of these transactions, no trustee resolutions, no gifting resolutions or any other record of how assets made their way into this trust, whether advances were gifted or how Angie’s interests were considered and dealt with.
[23] Angie says that she and Ian jointly paid the mortgage on Rata Street and ultimately sold Rata Street for a sum more than was paid for it.
[24] Following the sale of Rata Street, Ian and Angie lived with her daughter in Whangārei.
[25] In May 2008 they purchased a bare section that is referred to as “Roto View”. A deposit of $10,000 was paid from their joint savings.
[26] Again with no contemporaneous documentation, including trustee resolutions, Roto View was registered in the name of the Webb Investment Trust, the trustees being Ian and Carousel Turntables Limited. Again, the Record of Title did not record Angie as a registered proprietor.
[27] Ian was the sole director and shareholder of Carousel Turntables Limited. Carousel Turntables Limited was removed from the Register of Companies on 14 September 2022.
[28] On 15 March 2010, a property agreement was entered into which dealt with Roto View (the Agreement). The parties to the Agreement are Webb Kumar Trustee Company Limited, the Webb Investment Trust and ‘Ian & Angie’.
[29]The background to the Agreement records as follows:
1. The Trust [described as “Ian Henry Webb and Carousel Turntables Limited as trustees of the Webb Investment Trust”] has purchased the property at 13 Roto View, One Tree Point, being the property described in Certificate of Title 366236 (“the property”) for $166,500.00.
2. The property is to be registered in the name of the Trust Company [being Webb Kumar Trustee Company Limited].
3. The parties now wish to construct a house on the property. The necessary funds to complete the construction of the house are expected to be
$297,000.00.
4. In order to obtain the necessary funding, the parties have set up the Trust Company to own the property. The Trust Company holds the property as trustee for the Trust.
5. The Trust has contributed the purchase price together with a further
$150,000 towards the construction of the house. Ian & Angie are to contribute the remaining $140,000 for the construction of the house.
6. Ian & Angie’s contribution is to be made by way of a loan from the ASB Bank to be secured against the property.
7. Ian & Angie are beneficiaries of the Trust.
8. The parties wish to record their rights and obligations with regard to the property.
[30] The very first clause of the Agreement merits comment. The evidence is that the deposit for Roto View was made using joint savings of Ian and Angie. There is no evidence as to how the balance of the purchase price was paid.
[31] It is also noted that the Agreement is between Webb Kumar Trustee Company Limited, Webb Investment Trust and ‘Ian & Angie’. How or why a new trust company, the Webb Kumar Trust Company Limited, was to be involved is not explained and there are no resolutions that assist in that.
[32] Angie’s counsel says that as the Webb Investment Trust already had trustees which did not include Webb Kumar Trust Company Limited it cannot have been a trustee of the Webb Investment Trust. There are no resolutions appointing Webb Kumar Trustee Company Limited a trustee of the Webb Investment Trust.
[33]The defendant is unable to explain this either. Her evidence is:
Ian did not talk to me about business matters so I don’t know why he changed the title over the years. When he took me to the lawyers to sign papers I just signed what he asked me to as I loved and trusted him. It was never explained to me what I was signing, or even what my rights, as Ian’s wife, were.
[34] The Agreement records that in the event that one of the beneficiaries dies (beneficiaries being defined as Ian and Angie in the background), then the surviving beneficiary shall be entitled to reside in the property for a further 12 months from the date of death, after which the property is to be sold and its proceeds divided as provided for by the Agreement.
[35] The Agreement then sets out a mechanism for apportioning the proceeds of sale. Clause 7 of the Agreement provides that the proceeds of sale of the property are to be divided as follows:
(a)in payment of the costs and expenses of sale or valuation; then
(b)in discharging the mortgage secured over the property; then
(c)in crediting the respective parties with any capital payment; then
(d)in crediting the Webb Investment Trust with a 68 per cent share; then
(e)in crediting Ian and Angie with their 32 per cent share.
[36] On 14 August 2013 there was a variation to the agreement (the Variation Agreement). The Variation Agreement records that construction of the house on the property had been completed and that Ian and Angie were then in the process of refinancing the property, part of which required transferring the property to Ian and Angie. The agreement states that “Ian and Angie agree to hold the property in replacement of the Trust Company subject to the terms of the Agreement.”
[37] It is not clear whether “hold in replacement of” was to mean that the Trust was effecting a transfer of Roto View to Ian and Angie or whether Ian and Angie were to become trustees of the Webb Investment Trust. Again, no documents assist determining that.
[38] The mechanism for distributing the proceeds of sale was to continue in accordance with the Agreement. The Variation Agreement also records the Trust’s acknowledgement that Ian and Angie were to remain liable for any loan amounts under the mortgage and any replacement mortgage secured over the property, and that they agreed to indemnify the Trust for any loss suffered for breach of the mortgage.
[39] A transfer of the legal title to Roto View to Ian and Angie as joint tenants occurred on 16 August 2013.
[40]Ian died on 7 September 2021.
[41] By transmission, Angie became the registered proprietor of the property. On one view of the transactions, this makes Angie the sole registered proprietor and sole party with an entitlement to Roto View. But to find that would be to overlook the distribution mechanism set out in the Agreement.
[42]In May 2024, the plaintiffs became the trustees of the Webb Investment Trust.
[43] The plaintiffs wish to obtain summary judgment on their second cause of action, which focuses on breach of the Agreement, as varied and described above. Specifically, the plaintiffs seek the sale of the property in accordance with the Agreement, together with other relief.
Summary judgment
[44]Rule 12.2(1) of the High Court Rules 2016 provides:
The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
[45] The relevant principles governing a summary judgment application are well established:1
The question … is whether the defendant has no defence to the claim; that is, that there is no real question to be tried. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated. The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it.
Plaintiffs’ summary judgment application
[46] As set out above, at the commencement of the hearing, the plaintiffs’ counsel advised that the plaintiffs were now only seeking summary judgment on the second cause of action in the claim.
[47] That cause of action alleges that the defendant is in breach of the Agreement, as she has not permitted Roto View to be sold following the period of 12 months from Ian’s death. This, they say, is a breach of the Agreement and an order for sale is sought, together with mesne profits or occupation rent.
1 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26] (citations omitted).
[48]Tellingly, the claim pleads:
[18] The [Webb Investment] Trust gave valuable consideration to the defendant including but not limited to the right to reside rent-free in [Roto View] and a share of the sale proceeds upon sale.
[49] As will become clear in this judgment whether, and if so, to what extent the Trust “gave consideration” to the defendant is but one of the issues left at large by the paucity in documentary evidence in this claim. Whether the defendant was entitled to accede to sole ownership of Roto View following Ian’s death is another. The sum effect of these uncertainties is that summary judgment is not an appropriate mechanism to resolve these issues.
Discussion
[50] As the narrative above makes clear, there are a number of factual matters that are unanswered in the application before the Court. It is not possible for the Court to resolve the various transactions to the standard required to permit summary judgment to be entered.
[51]Among the uncertainties are:
(a)Uncertainty about what Angie’s interest in Rata Street was and why it was not recognised in the transfers in 1995, 1997 or 1999.
(b)Uncertainty about the circumstances surrounding the establishment of the Webb Investment Trust and, in particular, what Angie’s state of knowledge was about that.
(c)Uncertainty about whether Angie is a beneficiary under the Webb Investment Trust, as the Webb Investment Trust deed arguably only refers to the beneficiaries being Ian, the children and grandchildren of Ian, and the spouses of Ian’s children and grandchildren. If she was not a beneficiary, then why not.
(d)Uncertainty about the background to the purchase of Roto View and what Angie’s contribution was to that property.
(e)Uncertainty about why the Agreement was entered into, in particular, what the involvement of the Webb Investment Trust was and why the Variation Agreement provided for the property to be held as joint tenants by Ian and Angie yet the Webb Investment Trust is granted a 68 per cent share in the property under the Agreement.
(f)Uncertainty about the role of Webb Kumar Trustee Company Limited in the series of transactions and what impact that has on Angie’s rights.
(g)Uncertainty about whether Angie has an interest in the Webb Investment Trust and/or as a joint tenant of Roto View and, if the latter, whether she accedes to Ian’s share by survivorship.
[52]These factual uncertainties make summary judgment unsuitable.
[53] The plaintiffs seek to simply rely on the wording of the Agreement and say that it is clear on its face and there are no grounds to argue that there is no defence of non est factum available and hence summary judgment should follow. Effectively, they want to rely on the strict wording of an Agreement to the exclusion of an examination of the wider factual matrix.
[54] There are clear indicators here right through the history of the transactions that would raise the possibility that either Ian carried out the transactions in denial of Angie’s rights or, if she was advised about the transactions (there is no evidence of that), that she did not understand them. There is no evidence of Angie taking or being offered separate legal advice as to the effect that these transactions had on her rights.
[55] The attempt to seek summary judgment ignores the lack of record keeping of the Webb Investment Trust, the potential ambiguity about who the beneficiaries of the Webb Investment Trust are, why the Webb Kumar Trustee Company Limited was registered as owner of Roto View, why Roto View was then transferred into the names
of Ian and Angie, and what the intentions of the parties were about Angie’s interest in Roto View as either trust property (if that is what it is) or as survivor.
[56] The defendant also notes that in the absence of gifting records (there are none) then the advances made to the Webb Investment Trust by Ian and Angie stand as a joint debt to them in their personal capacity and so the beneficial interest in Roto View lies with Ian and Angie jointly, or potentially solely with Angie as survivor.
[57] There are also disputes about whether the defendant has elected, by default, to not rely on the Property (Relationships) Act 1976 (PRA). The plaintiffs say that she has elected “Option B” by default and that that means she has abandoned any claims under the PRA. They say such an option is irrevocable.
[58] A default election may be set aside under s 69 of the PRA if an application under that section is made before the final distribution of the estate of the deceased spouse or partner.2 In the absence of submissions on what final distribution means in the context of the PRA,3 or evidence that there has been final distribution of Ian’s estate, it seems that it may be open to the defendant to seek to set aside the default election. The Court has a wide discretion under s 69 of the PRA to look at all surrounding circumstances. This further supports an argument that summary judgment is not appropriate.
[59] If Angie were successful in an application to set aside the choice of option imposed by the PRA, and she chose Option A instead, she could make an application for division of relationship property.4 The defendant submits that any equity the Webb Investment Trust had in Roto View was built up by the joint efforts of Ian and Angie (Angie being the only one working during this time, Ian being retired) and the PRA recognises that Angie would have a s 44 claim in equity.
[60] Further, the defendant says that s 95 of the PRA provides that if Option B is chosen, nothing in the Act applies to the distribution of property under the will of the deceased, however, when property is owned jointly, it does not enter into the estate of
2 Property (Relationships) Act 1976, s 70.
3 See discussion on this issue in Adams v Adams [2013] NZHC 2420.
4 Adams v Adams, above n 3, at [39].
the deceased. As set out above, Angie’s rights as survivor remain a contestable issue. Regardless of any other claims she might have, there is a genuine question as to whether Roto View was owned jointly with Angie.
Decision
[61] Standing back from the strict wording of the Agreement, and given the extensive factual disputes and lack of documentary records about the dealings, this is a case similar to Herring v Herring,5 where to grant summary judgment on the Agreement without being cognisant of the entire factual matrix would be oppressive and unjust.
[62] In Herring, the Court of Appeal held that the Court had a residual discretion to decline summary judgment and was entitled to look at any injustice arising to the defendant from other aspects of the overall dispute between the parties. The Court stated that as this was essentially a relationship property dispute it was preferable that all issues were resolved.
[63] I take a similar view. Like the Court in Herring,6 I consider that because of the nature of the underlying issues and the desirability of resolving all of the issues between the parties, summary judgment should be declined. The grant of summary judgment would entail “some injustice” and may be an oppressive use of the procedure of the Court to grant enforcement of the Agreement without standing back and considering all relevant background and facts.
[64] The conclusion I reach therefore is that there are uncertainties and omissions in the evidence that I am unable to resolve in the summary judgment context without the risk of effecting an injustice on Angie. The Court will be assisted by hearing from all relevant parties, after they have had the benefit of discovery, in order to determine the true position on Angie’s interests in Roto View.
5 Herring v Herring [2011] 2 NZLR 433.
6 At [29].
Result
[65] The defendant, therefore, has an arguable defence to the claim for enforcement of the Agreement.
[66]The plaintiffs’ application for summary judgment is declined.
[67]In accordance with the principles in NZI Bank v Philpott,7 costs are reserved.
Associate Judge Cogswell
7 NZI Bank Ltd v Philpot [1990] 2 NZLR 403.
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