Hill v Bluegum HC Tauranga CIV-2008-470-455
[2011] NZHC 1364
•10 August 2011
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2008-470-455
BETWEEN BRIAN JOHN HILL Plaintiff
ANDTED BLUEGUM Defendant
Hearing: 14-16 March 2011 (Heard at Rotorua)
Counsel: E Telle for the Plaintiff
G McArthur for the Defendant
Judgment: 10 August 2011 at 5:00 PM
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 10 August 2011 at 5:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr E Telle, Neilsons, Solicitors, Onehunga
Mr G McArthur, Barrister, Tauranga
HILL V BLUEGUM HC TAU CIV-2008-470-455 10 August 2011
Table of Contents
Para No
Introduction [1]
The evidence
Wipere Kingi [7] Kura and Ted Bluegum [9] Tom Horopapera and the Whakatane land [11] The 1967 agreement [13] Immediately following the agreement [22] Events following the death of Uru Horopapera in July 1976 to
Kura Bluegum’s death in May 1994 [26]
Wipere Kingi’s connection with the Whakatane property from
1967 to 1998/1999 [34]
Plaintiff’s evidence of a meeting in Katikati between Ted Bluegum
and Wipere Kingi in 1998/1999 [36] The evidence of Geraldine Takarangi [43] Other evidence for the plaintiff [47]
Assessment
Introduction [59] The defence case : credibility and reliability [64] The defence case : plausibility [69] The plaintiff’s case : the significance of the formal documents [78] Other evidence [94] Conclusion on the defence case and points of law in that regard [97]
Resulting trust [107] Conclusion [111] Costs [113]
Introduction
[1] This case concerns title to a property in Whakatane. It was registered in the names of Kura Atea Bluegum and Wipere Kingi as tenants in common in equal shares. The property had been left to them in the will of Te Wera Tame Horopapera, known as Tom Horopapera. Tom Horopapera was Kura Bluegum’s father and Wipere Kingi’s step-father. Tom Horopapera’s wife, Urupounamu Horopapera, known as Uru, was the mother of both children. Wipere Kingi was a child of a relationship she had prior to her marriage to Tom Horopapera.
[2] Kura Bluegum died in 1994. In 1995 her half share was transferred into the name of her husband, the defendant Ted Bluegum. Ted Bluegum holds title as administrator of the estate of Kura Bluegum.
[3] Wipere Kingi died in 2004. Title to his half share is now in the name of the plaintiff, Brian Hill. Brian Hill is a solicitor in Auckland. He is the executor and trustee of the will of Wipere Kingi and holds title as such.
[4] Brian Hill commenced this proceeding to seek an order for sale of the Whakatane property and financial relief against Ted Bluegum. Ted Bluegum resists the claim because, he says, there was an agreement between Wipere Kingi and Kura Bluegum that Wipere Kingi’s half share would go to Kura Bluegum. The undertaking on the part of Wipere Kingi was said to have been given to persuade Kura and Ted Bluegum to move from Waiuku to Whakatane in 1967 to look after Uru Horopapera following her husband’s death. The agreement is said to have been made at the tangi for Tom Horopapera in 1967. Kura and Ted Bluegum, with the three children they had at that date, did move from Waiuku to Whakatane in 1967 and did look after Kura Bluegum’s mother until she died. Ted Bluegum contends that the agreement should now be given effect by transfer of what was Wipere Kingi’s half share to him as administrator of his wife’s estate. The central issue in this case is whether an agreement as alleged was made in 1967. The issues of consequence in this regard are all issues of fact.
[5] The plaintiff accepts that an agreement was made between Wipere Kingi and Kura Bluegum in 1967. The plaintiff contends, however, that it is to be inferred that what was agreed was that, if Kura and Ted Bluegum moved to Whakatane to look after Uru Horopapera, they could have full use of the property until Uru Horopapera died.
[6] Ted Bluegum advances an alternative claim to Wipere Kingi’s half share. This is a claim based on a resulting trust. In 1965 Tom Horopapera entered into a long-term agreement to buy the Whakatane property for $1,500. When he died in
1967 he had only paid a deposit of $200. The balance of $1,300, together with interest, was paid in full by Ted Bluegum. He paid the full sum notwithstanding the fact that it was the sum owing under an agreement for sale and purchase pursuant to which Wipere Kingi was equally liable with Kura Bluegum for the purchase price. The resulting trust claim was not formally pleaded. However, the possibility of such a claim was raised by me with counsel before the hearing commenced. Mr Telle, on behalf of the plaintiff, responsibly accepted that the plaintiff was not disadvantaged by the absence of a pleading and that the claim could be advanced.
The evidence
Wipere Kingi
[7] Wipere Kingi was born in about 1935.1 His father’s full name was not given in evidence. I will refer to him as Mr Kingi senior. Wipere Kingi’s mother, Urupounamu, subsequently married Tom Horopapera.
[8] It is implicit from the evidence that, following the marriage of Uru and Tom Horopapera, Wipere Kingi was brought up by both of them on their farm near Whangamata. Wipere Kingi left the farm and moved to Auckland in about 1957 aged about 22. Wipere Kingi remained in Auckland from that time until his death in
2004. Mr Kingi senior lived in Auckland. There are some indications in the
evidence that a relationship between father and son was established or re-established.
1 Some dates and ages are approximate because precise dates and ages were not given in evidence.
Wipere Kingi married Adelaide Kingi. They had two children, Ronda Kingi born in
1969 and Mark Kingi born in 1972. Adelaide Kingi died in 1986. Wipere Kingi lived in a de facto relationship with Geraldine Takarangi from approximately
1988/1989 to Wipere Kingi’s death in May 2004, with two periods of separation in
that time.
Kura and Ted Bluegum
[9] Kura Bluegum was the only child of Uru and Tom Horopapera. She was born in 1945. Ted Bluegum was born in about 1943. Kura and Ted Bluegum were married for 30 years; from 1964 until Kura’s death in 1994. They had nine children. The eldest, Emily, was born in 1965 and the youngest, Urupounamu, was born in
1979.
[10] In 1967, when Tom Horopapera died, Kura and Ted Bluegum were living in Waiuku in a house owned by The New Zealand Dairy Company, for whom Ted Bluegum worked. He had been working for the company for three and a half years. He had skilled jobs which were well paid. At the time of Tom Horopapera’s death he was about to seek a further qualification. As he put it:
I was working my way up in the company which I saw as my career. I was quite serious about it.
The house was provided rent free by the company. It was a comfortable house providing a good home for Kura and Ted Bluegum and their children. A further benefit was that Ted Bluegum’s brother, James, also worked in Waiuku for New Zealand Dairy Company, and James Bluegum and his wife, Elizabeth, lived in another company home nearby.
Tom Horopapera and the Whakatane land
[11] Around 1 July 1965 Tom Horopapera entered into what was described in a later document as “an arrangement” with the Proprietors of Muriwai Block to buy
the Whakatane property.2 Title to this land was in the name of the Maori Trustee. There is no dispute that Tom Horopapera had an effective agreement, made on or about 1 July 1965, to buy the land for a total of $1,500, that he paid a deposit of
$200 on 1 July 1965, and that he did not make any further payments before he died in 1967. Tom and Uru Horopapera were living in the Whakatane property when Tom Horopapera died. Uru Horopapera remained living there until she died in 1976.
[12] By his will Tom Horopapera gave his wife a life interest in the Whakatane property, with the property to go to Wipere Kingi and Kura Bluegum in equal shares on the death of Uru Horopapera.
The 1967 agreement
[13] Ted Bluegum gave evidence of the oral agreement he says was made between
Kura Bluegum and Wipere Kingi at the tangi for Tom Horopapera in Whakatane in
1967. Ted Bluegum was a necessary participant in what was proposed, either at the time of the discussion, or in later discussions at least with his wife, because it directly affected him. There was further direct evidence of the discussion from Ted Bluegum’s brother and sister-in-law, James and Elizabeth Bluegum.
[14] There are some differences between these witnesses on matters of detail. There is also one particular point of difference between Ted Bluegum’s prepared brief of evidence and what he said on the topic in cross-examination. It is unnecessary to go into the detail of any of this. I am satisfied that none of it bears on my assessment of the credibility of these three witnesses in general or the reliability of their evidence on the material points. In fact, the small number of differences, all of which do go to matters of detail of no material consequence, reinforced my general conclusion that all three witnesses were credible and reliable on the main
points. I will discuss this more fully later in this judgment.
2 The record of the “arrangement” is contained in an agreement for sale and purchase of the land,
dated 29 May 1978 and discussed at [26]-[28] below.
[15] The evidence was that Wipere Kingi said that he wanted his sister to move to Whakatane with her family to look after their mother. Kura Bluegum was resistant to the proposal when first put to her. It was not in issue between brother and sister that it was desirable to have somebody living with their mother and looking after her. The question was: who should it be? Kura and Ted Bluegum did not want to move from Waiuku where they had the home provided by the company, where Ted Bluegum had a good job and good prospects, and where they were saving for, and able to save for, their own home. Employment prospects in Whakatane were not good in comparison. Wipere Kingi did not want to move from Auckland where he
was well settled and where he had been living (it seems) since about 1957.3 There is
further evidence that Wipere Kingi was in good employment and contributing to a superannuation fund. He also purchased a home in Auckland, although the evidence does not indicate whether he had bought the home before Tom Horopapera died in
1967.
[16] The essence of the evidence of the three witnesses is that Wipere Kingi said that, if Kura and Ted Bluegum did move to Whakatane to look after Uru Horopapera in her home, then he, Wipere Kingi, would transfer his half share to his sister. After some further discussion, with a degree of tension, this was agreed.
[17] There was another discussion between Wipere Kingi and Kura and Ted Bluegum at the Bluegum home in Waiuku. The inconsistency between Ted Bluegum’s prepared brief of evidence and his oral evidence relates to a question whether the agreement with Wipere Kingi was made at the Waiuku home or at Whakatane. As already noted, I do not consider that anything turns on this in terms of credibility or reliability on material issues. The evidence about this discussion came from Ted and James Bluegum. Wipere Kingi came out to Waiuku from Auckland to discuss the matter with Kura and Ted Bluegum. Wipere Kingi came with his then girlfriend and future wife, Adelaide. Ted Bluegum said that he thought that Wipere Kingi had come out to see him and Kura because Wipere was worried
that he, Ted, had changed his mind or would change his mind about going to
3 It is not entirely clear when he settled in Auckland but it seems likely that it was around 1957. It is clear that by 1967 he had been in Auckland for a reasonable period of time and was well settled and established in Auckland.
Whakatane. The essence of the evidence, consistent between Ted and James Bluegum, was that the agreement that had been reached in Whakatane was confirmed – Kura and Ted Bluegum would move to Whakatane with their children to look after Uru and Wipere’s half share in the property would go to his sister.
[18] The evidence of the agreement between Wipere Kingi and Kura Bluegum was not challenged by any evidence, direct or hearsay, from any other witness to the conversations.
[19] Ted, James and Elizabeth Bluegum were all cross-examined on their evidence about the agreement. The cross-examination of Ted Bluegum was extensive. In the course of this cross-examination Mr Telle put propositions to the witnesses, and in particular to Ted Bluegum, to the essential effect that Kura Bluegum was bound in any event to have moved with her family to Whakatane to look after her mother, so that there would have been no need for Wipere Kingi to have promised to transfer his half share in the property. Other reasons for moving to Whakatane without an inducement from Wipere Kingi were also put to the witnesses. They did not resile from or qualify their evidence of the promise from Wipere Kingi.
[20] I will set out one passage of cross-examination of Ted Bluegum. During the preceding cross-examination Mr Telle referred to what he described as the “Maori tradition” of not leaving family on their own. There was the following:4
Q. And Kura would have taken that kind of Maori traditional, um, issue seriously, given how big a family person she was, wouldn’t she?
A. She took it in that way, but then she looked at it in another way too, and the way where, um, if her brother would have gone back she would have been happy with that. But the thing was that he just refused to go back and, ah, and, and she, she didn’t just get up and want to go back straight away, she wanted to, ah, talk to her brother and make, try to get her brother to go back.
Q. But –
A. – she knew that we were going to have a hard time if we do go back with our own, with our children and we, without work.
Q. Yeah.
A. She knew how hard it was going to be and she turned around and she said that to her bro, told her brother that, and she tried to get her brother to go back, but he just refused, and that’s why he made the offer.
Q. … Wipere was never going to be moving back to Whakatane. Kura and you would have been well aware of that, that just wasn’t an issue was it?
A. No, no, no, we weren’t aware of that. We weren’t aware of that at
all.
Q. Do you think that Wipere who’d been living away from his parents for 10 years in Auckland was all of a sudden going to – it was an option – it was -
A. Well, she’s the mother.
Q. – that was going to happen. A. That’s his mother.
Q. That’s right.
A. Yes. I mean, ah, yeah, he’s, he spent time away from them all right.
He had been up with his father, and that’s his mother back there. I
mean –
Q. But you said in your own evidence that Wipere said he wasn’t going to move back home, so as you say that’s Kura’s mother, so what option did that leave Kura?
A. Ah, well, that’s ah, Wipere’s mother too.
Q. That’s right.
A. Well, they got, they just about got into an argument over this, through that, and Kura tried to explain to him that, ah, we had a family – he had nothing – but what he had was a girlfriend. He had no family and we had two children with the third one coming out.
Q. And there was a lot more to come and a great spot to move to in Whakatane. Can I just ask you another question – it served as no option – it wouldn’t have been realistic given the description you’ve given of the home and the three children you had and so far and you’re living on the dairy farm, [sic] it wouldn’t have been a realistic option for example for Uru to move to Waiuku would it?
A. Why would she move to Waiuku, that was her home.
Q. Someone needed to look after Uru and I’m just considering the
options.
A. Well the option was either Kura went down to look after her or her brother.
Q. What about – did you not consider the option of perhaps Uru living with you?
A. We never gave that a thought at all, because I don’t think she would
have because they [had] only just built that home.
Q. But just because – you say it was such a big deal for you to leave and Uru obviously couldn’t be left alone, Wipere obviously wasn’t going to move there so perhaps that was an easy option – that was a possible option you could have chosen, but instead you chose to move to Whakatane? Would that be correct?
A. No, that’s not correct at all. Like I said we just about got into arguments, that’s the reason why we made that thing.
Q. Other than the fact that you obviously say you didn’t want to leave – leave Waiuku, can you think of any reason why Kura wouldn't have wanted to have left to go and live in Whakatane?
A. 'Cos she knew the hardship we were going [to go] through. We’ve –
it took us a while to get where we were.
[21] There were also suggestions in cross-examination that Ted and Kura Bluegum would have positively wanted to go to live in the Whakatane property because of its location. There was the following exchange:5
Q. Now you talk about the Muriwai Drive property as being in a prime location and because it’s located and close vicinity to coastline, beautiful coastline land isn't it?
A. Yes.
Q. So would you say it’s fair to say that Muriwai Drive property was an idyllic spot one – one – a very good spot for bringing up a large family?
A. That all depends on yourself, if you wanted a large family and that
doesn’t matter where you bring it up, to me.
Immediately following the agreement
[22] Ted Bluegum said that, shortly after the agreement was made, his wife and the three children moved to Whakatane and moved in with Uru Horopapera. Ted Bluegum gave notice to The New Zealand Diary Company, worked out one month’s notice, and followed his wife and children.
[23] Ted Bluegum was able to get a job working for a dairy factory at Edgecumbe, about 20 minutes drive from Whakatane. He did not have a car and had to buy one to get to work. The pay was less than he had been getting at Waiuku and there was the added cost of travel which he said was expensive. And he was on shift work. He said that he “only lasted a year” in that job because of the cost of travel. He then got a job working for a liquor outlet in Whakatane and for about three to four years also worked at nights as a bouncer “to make ends meet”. In 1976 he said that he got a job in a sawmill. He said he enjoyed the work, but it was dangerous and it was not a job he would have taken if he had stayed working in the dairy factory. He was made redundant in 1988 when the sawmill closed. He said that he was never able to save enough to buy a home for himself and his family.
[24] In 1974 Ted and Kura Bluegum moved with most of their children to Katikati. He said it was not intended as a permanent move, but to try and secure a house in Katikati to stay in from time to time close to his marae. He hoped to manage this by entering into a rent to buy arrangement. He was not able to complete the payments. While in Katikati, until around April 1976, Kura and Ted Bluegum arranged for one or other of their two eldest daughters to live with Uru Horopapera together with a cousin of Kura Bluegum and an aunt. Kura and Ted Bluegum moved back to Whakatane in about April 1976 and again cared directly for Uru Horopapera for the last three months or so of her life. She became bedridden in the last two months of her life.
[25] Ted Bluegum said, in respect of their time with Uru Horopapera:
31.Over the time with Uru she was quite healthy until our return from Katikati. We provided her with the company of our family – that is her daughter Kura, myself and all of our children. She loved her grandchildren. This contact is important to the maori people. We did all the cooking – that is me or my wife. And we did all the washing and cleaning – our kids would help – so she did not have to do that. One of us could drive her if she wanted to visit a friend or go out. Whenever she went and stayed away with a friend she would return quickly because she was so happy there.
Events following the death of Uru Horopapera in July 1976 to Kura Bluegum’s
death in May 1994
[26] There is no evidence of any formal legal steps being taken in respect of the Whakatane property, as an asset of the estate of Tom Horopapera, by the executor of the estate or anyone else, until 29 May 1978; that is 11 years after Tom Horopapera’s death. On that date a written agreement for sale and purchase was entered into between the Maori Trustee as vendor and Kura Bluegum and Wipere Kingi as purchaser. The purchase price was $1,500. Receipt of a deposit of $200 was acknowledged by the following clause in the agreement:
It is acknowledged by and between the parties hereto that this agreement is evidence of an arrangement made between the Proprietors of Muriwai Block and Tom Horopapera under which agreement he paid the sum of $200 as a deposit on 1 July 1965.
[27] The balance required to be paid was $1,403, being the purchase price balance of $1,300 and sundry expenses. Payment of the balance, together with interest at
8.5% per annum, was to be made by instalments.
[28] The signatures of Kura Bluegum and Wipere Kingi were witnessed by Mr Harvey, the Whakatane solicitor who had acted for Tom Horopapera, including preparation of Tom Horopapera’s will. Mr Harvey has died. There is no direct evidence as to why this agreement was signed in this form if, as now contended, Wipere Kingi had agreed to transfer his half share to his sister. Ted Bluegum said in his evidence that he left it with his wife to deal with matters relating to the Whakatane property because it concerned her family land, not his family land. The way he put it was as follows:
40.Kura went in to talk to Mr Harvey alone – I just took her down there. After she came out I asked her if everything was alright. She said she did not really know – I left it at that.
I left it to my wife to fix things up with Wipere. It is a maori belief that you should not step on another’s property; that is you should not get involved in other people’s property; It has a name – it is called wai wai tapu.
I am defending this claim now though for my kids’ sake who through Kura’s blood which they have, are entitled to have that promise that Wipere made on it.
[29] The balance of the purchase price for the property, together with some associated expenses and interest, were paid by Ted Bluegum. No payment was made by Wipere Kingi although he was a party to and bound by the agreement in a formal sense. There is a letter dated 8 July 1983 from the Office of the Maori Trustee to Kura Bluegum and Wipere Kingi requesting payment of the balance then owing of
$1,313.29. The payment was made in full by Ted Bluegum.
[30] The receipt of the Office of the Maori Trustee for the final payment is dated
22 July 1983. It appears that the Office of the Maori Trustee then prepared a memorandum of transfer as a matter of course for execution by the Maori Trustee in accordance with the agreement for sale and purchase. The memorandum of transfer is dated 29 August 1983 and was subsequently registered. No steps were required to be taken by the other parties to effect completion of the memorandum and registration of the transfer.
[31] All outgoings for the Whakatane property from 1967, when Kura and Ted Bluegum went to live there, were met by Ted Bluegum. There is no evidence of any outgoing or other expense being met by Wipere Kingi, before or after his mother died. After Kura Bluegum died Ted Bluegum moved to Katikati. The property was rented from time to time and any net income from this was retained by Ted Bluegum.
[32] Kura Bluegum died in May 1994. She did not leave a will. In December
1994 Ted Bluegum swore an affidavit in support of an application for letters of administration of his wife’s estate. This affidavit was prepared by Mr Harvey. In the affidavit Ted Bluegum deposed that, to the best of his knowledge, the gross value of his wife’s estate did not exceed $70,000. There is a rate demand for the Whakatane property, dated 6 October 1994, recording a capital value for the property of
$132,000. Mr Telle made the point that half of that capital value – $66,000 – is close to the figure in Ted Bluegum’s affidavit of $70,000 as the gross value of his wife’s estate.
[33] There are also letters from Mr Harvey to Mr Bluegum, at around the same time and dealing with the estate, in which Mr Harvey refers to Kura Bluegum’s “half share of the land”. Following grant of the letters of administration Mr Harvey also
reported to Ted Bluegum that title to Kura Bluegum’s half share had been registered in his name as administrator. Ted Bluegum said that he did speak to Mr Harvey about the fact that Wipere Kingi was on the title. He said this was around the time that he was dealing with Mr Harvey in respect of his wife’s estate. He said:
53.… I told him Wipere Kingi’s name should not be on the title. I remember telling him my wife had already spoken to him about this. However his response was it was like water off a duck’s back. He did not take any notice of me. I am not sure how often I spoke to him about this.
Wipere Kingi’s connection with the Whakatane property from 1967 to 1998/1999
[34] There was evidence from Wipere Kingi’s two children, Ronda, born in 1969, and Mark, born in 1972, that they made regular visits to the Whakatane property with their father and mother until, approximately, the early 1980s. This was disputed by Ted Bluegum and his two eldest children, Emily and Pini Bluegum, born in 1965 and 1967 respectively. They did not dispute the fact that there were some visits, but they said, in essence, that there were not many. There was a reasonable amount of cross-examination on this topic, but I do not consider that anything of consequence turns on it. The visits, whatever their precise number, were family visits; a son visiting his mother, and his sister and her family, with his wife and two young children. The evidence also establishes that Wipere Kingi had family on his father’s side in or near Whakatane and that this also brought him to Whakatane with his children.
[35] What is relevant, in relation to the central issue of fact, is that, apart from one occasion, there is no evidence that Wipere Kingi showed any interest in the Whakatane land from Tom Horopapera’s death in 1967 until around 1998 or 1999, being four to five years after Kura Bluegum died. The one exception to this in fact comes from the evidence of Ted Bluegum. His evidence in this regard was as follows:
43.There was one time when Kura was still alive but after Uru had died that Wipere and his father turned up at the house. They just turned up – I heard them talking around the side of the house. I heard the father say – sell the house. I went round to the side of the house and confronted them. I said what are you doing here. The father just
started looking at the sky. Wipere said “Oh nothing”. I said “I heard talk about selling. Who the hell is this guy?” Wipere said “it is my father”. I told them to get the hell off the place and they left.
44.Apart from that incident Wipere never approached me to say the house should be sold or that he was claiming or had any share in it. That is because he knew he had agreed to give his share away and that was why we came down to Whakatane.
45.After that incident I told Kura to go up to Auckland and straighten her brother out. She went up there for a week and came back a nervous wreck. She told me Wipere’s father had gone round there often and told her to sell the place and had been threatening to her to the point she was a wreck.
46.Later on I came home and found Kura on the phone to someone. I could see she was scared. I knew it was Wipere’s father on the other end. I took the phone and told him “f - off and have nothing further to do with us”.
Plaintiff’s evidence of a discussion in Katikati between Ted Bluegum and Wipere
Kingi in 1998/1999
[36] There was evidence for the plaintiff of a discussion between Wipere Kingi and Ted Bluegum at Ted Bluegum’s home in Katikati in 1998 or 1999. The evidence for the plaintiff on this came from Ronda Kingi and Sidney Williams. Sidney Williams was Ronda Kingi’s partner for six years until 2003. The plaintiff placed some emphasis on this evidence as justifying an inference that Wipere Kingi had not agreed to transfer his half share to his sister. Ted Bluegum’s evidence was that there was no meeting as alleged by the plaintiff’s witnesses. There was further evidence for the defence from Yvonne Campbell. Yvonne Campbell lived with Ted Bluegum from 1996 to 2000. The essence of her evidence was that she was unaware of any meeting as alleged by the plaintiff’s witnesses. However, it is possible from her evidence that, if there was a meeting, she might not have been there at the time.
[37] Ronda Kingi said in her prepared brief of evidence that in 1998 she went with her father and Sidney Williams to Whakatane because her father “wanted to see how much work was needed to bring the homestead to a comfortable liveable state”. She said that they went first to Katikati to get the key from Ted Bluegum. She said they arrived in Katikati the evening, met Ted Bluegum at a pub, went back to his house,
and stayed the night. She said that no-one else was living in the house with Ted
Bluegum when they stayed the night. She then said:
16. That night we all had a few drinks and talked about the homestead.
Dad did not want it sold and wanted it kept in the family so it could be available for family to live there or for him to possibly retire
there. Dad and Ted also argued over the payment of rates.
17.Ted was adamant there was no point in us visiting the homestead and he made the offer to buy Dad’s share. I think Ted had received or seen a Government valuation valuing the property at around
$120,000.00 so Ted gave a figure of $60,000.00 for Dad’s half
share.
18.Later that evening after Sid and I went to bed Dad and Ted continued drinking and there was later an extremely heated argument which woke Sidney and I. We then took Dad to bed to avoid the argument turning physical.
[38] She said that the next day they did go to Whakatane, although Ted Bluegum said it was a waste of time. She said that in Whakatane Sidney Williams brought a real estate agent to the house and the agent put a value of around $320,000 on the property. She said:
I was surprised by this figure as it was a lot of money especially as Ted had mentioned each half share only being worth about $60,000.
[39] Sidney Williams, in his prepared brief of evidence, said that in the 6 years that he and Ronda Kingi lived together he became very close with Wipere Kingi. He said that Wipere Kingi told him about the property in Whakatane and said that he wanted to retire there.
[40] He said that in 1999 he went to the Whakatane property with Wipere Kingi and Ronda Kingi. The reason for the visit was to inspect the property with a view to doing it up for Wipere Kingi to live there. Sidney Williams is a builder. He said that he, Wipere Kingi and Ronda Kingi, went to see Ted Bluegum in Katikati, on their way to Whakatane. This was at the end of 1999. In his prepared brief he said:
11. We arrived [at] Ted’s house that evening and Ronda, Wipere and I all stayed there that night. We all had some drinks and discussed what was happening with the Property. Wipere was very open with his desire to retire there but Ted strongly opposed.
12. Ted wanted the Property sold because he said he had no use for the property anymore. There was some tension and then Ted offered Wipere $50,000.00 for his share in the Property. This was not acceptable to Wipere. 13.
Ted didn’t justify this figure except he said that he thought the cliffs at the rear of neighbouring properties could possibly collapse in the near future which effected [sic] its value. He also said that as he had been paying all the rates he believed he should be entitled to be reimbursed for those. Wipere did not agree with this and told Ted that as he had had the use of the property it was always accepted between them that he was therefore responsible for the rates. From the time that I visited the property it was obvious to me that Ted’s suggestion that the cliffs may collapse were far-fetched.
14.
That night the discussions continued as Ted and Wipere continued drinking and Ronda and I went to bed. However I remember waking up early in the morning as a huge argument erupted between Wipere and Ted and they screamed and shouted very loudly at each other. I remember Ronda getting out of bed and getting Wipere to go to bed.
[41]
Sidney
Williams confirmed that the following day they went on to
Whakatane and inspected the property. He also confirmed that there was a discussion with a real estate agent. He said that the agent provided a valuation of around $350,000.
[42] Ronda Kingi and Sidney Williams were cross-examined at length on their evidence about the meeting in Katikati and their subsequent visit to Whakatane. I will note some of the evidence arising from this cross-examination in my discussion of the issue.
The evidence of Geraldine Takarangi
[43] As earlier noted, Geraldine Takarangi and Wipere Kingi lived in a de facto relationship from approximately 1988/1989 to Wipere Kingi’s death in May 2004. There were two periods of separation; one of approximately 3 years between 1997 and 2000 and one of approximately 4 months in 2002. Geraldine Takarangi has claims against Wipere Kingi’s estate under the Property (Relationships) Act 1976, the Law Reform (Testamentary Promises) Act 1949 and the Family Protection Act
1955.
[44] Ms Takarangi said in her prepared brief of evidence that Wipere Kingi and
Kura Bluegum had a good relationship. She said:
As I recall Kura would come to Auckland two or three times a year and see Wipere at our home at Rose Road, Grey Lynn … Wipere and Kura would socialise and spend time with each other at our home in Rose Road … I met Ted a number of times in Auckland when he visited with Kura.
In cross-examination Ms Takarangi acknowledged that in fact she had only met Kura
Bluegum once.
[45] Ms Takarangi said:
7.Wipere told me the history of the property and how he became a half owner of the property. I got the impression that Kura and Ted were happy there and while they were living there together wanted to purchase his share, but Wipere wanted to ensure the property was kept in the Kingi family.
[46] Wipere Kingi was ill for approximately 3 years before he died in May 2004. Ms Takarangi said in her brief:
16.When Ted discovered Wipere was ill, he started to contact Wipere more frequently. Ted tried to get Wipere to sign documentation that signed over his share of the property to Ted. I also remember Wipere being adamant he would not do that and wanted the property to pass to Harley [his grandson] if his children did not want it.
In cross-examination Ms Takarangi confirmed that there was no talk of payment by
Ted Bluegum to Wipere Kingi for transfer of Wipere Kingi’s share.
Other evidence for the plaintiff
[47] Christopher Timmins is a real estate agent in Whakatane. He said that in
2001 he was asked by a person called David Sheaff to contact Ted Bluegum to see if Mr Bluegum was willing to sell the property. David Sheaff told Christopher Timmins that his own approach to Ted Bluegum had been without success. Christopher Timmins said that he spoke to Ted Bluegum by phone and made an offer to buy the property for about $350,000. He said he heard nothing further, called again, and was then told by Ted Bluegum that “he was only a co-owner and he would
have to go to Auckland to seek the consent of the other co-owner to sell the property and agree to the price but that he was otherwise interested in selling it”. He said he never heard back from Mr Bluegum.
[48] Ted Bluegum confirmed that he had a discussion with Christopher Timmins but that Christopher Timmins is mistaken over the detail.
[49] I am satisfied that nothing turns on Christopher Timmins’ evidence. I do not question his credibility, but he readily acknowledged, in effect, that although he recalled the discussions with Ted Bluegum, he had no clear recollection of exactly what was said. What he did recall was “the basic gist of … the conversation, in general terms”. In any event, I do not consider that the response from Mr Bluegum, even as recalled by Mr Timmins, can be taken as indicating that there was no agreement between Kura Bluegum and Wipere Kingi in 1967 as alleged.
[50] There was evidence from the plaintiff, Brian Hill. Wipere Kingi’s will appointed Brian Hill and his former partner, Martin Roche, executors and trustees of the estate. Mr Roche died in July 2007. The firm of Bowen Roche and Hill acted as Wipere Kingi’s solicitors for many years. Wipere Kingi’s final will was a will prepared by the firm in 1986 and signed by Wipere Kingi in May 1986.
[51] Brian Hill said that in September 2003 he was advised by Geraldine Takarangi’s solicitors that Wipere Kingi was in poor health. He said that he went to Wipere Kingi’s home in October 2003 to discuss his estate and issues raised by Geraldine Takarangi’s lawyer. He said that Wipere Kingi was in reasonably good spirits but was unable to talk because of throat cancer. Wipere Kingi gave him a handwritten note he had made. There is a fairly cryptic reference to Geraldine Takarangi’s entitlement “over 3 years” and provision for her and Wipere Kingi’s grandson, Harley. Harley is the child of Ronda Kingi, but was brought up by Wipere Kingi and Geraldine Takarangi. The note then proceeds:
WATERFRONT LEFT HOUSE IN WHAKATANE ME & MY SISTER
DIED WERE HAVING HUSBAND
A ROW KIDS
WORTH 100,000 NOW 350,000
RUN DOWN
[52] Wipere Kingi wrote at the bottom of his note, addressed to Brian Hill: “I’ll visit you when I get a clear pic”. I am satisfied that this was a reference to the estate as a whole and including questions relating to provision for his grandson and the position of Geraldine Takarangi.
[53] Brian Hill in his evidence provided an interpretation of the note relating to the Whakatane property, but he acknowledged that more than one interpretation was open. This is a matter for the Court. Brian Hill was not able to provide any further evidence based on instructions from Wipere Kingi at that time to assist in interpreting the note.
[54] Brian Hill went to see Wipere Kingi again in early 2004. He sought to obtain clearer instructions by recording questions in writing and seeking Wipere Kingi’s written response. There were questions and responses under a heading “49 Rose Road”, which was Wipere Kingi’s home in Auckland, and these included responses relating to provision for Wipere Kingi’s children and for Harley and relating to Geraldine Takarangi’s entitlement to claim half. There was then a question as follows:
Do you want everything – waterfront fund, house Rose Road, Whakatane –
to be shared between Ronda, Mark and Harley?
There is no answer recorded to this question. The remaining answers written by Wipere Kingi are directed to claims by or provision for Geraldine Takarangi and Harley and sale of the “house” which is obviously a reference to Rose Road.
[55] It appears that Brian Hill, or others in his firm, had not been aware of Wipere Kingi’s interest in the Whakatane property until Brian Hill’s meeting with Wipere Kingi in October 2003, with the reference to the property in the handwritten note. Following Wipere Kingi’s death the list of estate assets included a half interest in the
Whakatane property. This naturally followed from enquiries following Wipere
Kingi’s death which established that he was registered as owner of the half share.
[56] In February 2007 Brian Hill wrote to Ted Bluegum, referred to the fact that Wipere Kingi was registered as owner of a half share, and asked whether Ted Bluegum was interested in purchasing the share. Ted Bluegum did not receive the letter because it was sent to the Whakatane property but Ted Bluegum was not living there. In about November 2007 Brian Hill instructed another firm of solicitors, McVeagh Fleming, to assist in realising the estate’s apparent interest in the Whakatane property. McVeagh Fleming wrote to Ted Bluegum at the Whakatane address in November 2007, a letter also not received. Sometime later a staff solicitor at McVeagh Fleming contacted Ted Bluegum by phone. There is a letter from McVeagh Fleming dated 9 January 2008 referring to discussions with Ted Bluegum. It is recorded that Ted Bluegum had previously said that he was owed expenses for property maintenance which would have to be reimbursed before he would consent to sale of the property. Ted Bluegum said:
57.At some point I did ask for reimbursement for maintenance of the property. That was because at some point my family was telling me to just flag the whole thing away and I remember my response to that pressure was “he should at least pay for half the money I have spent on it” but that response was not because I thought they were right or that was right or fair.
The letter from McVeagh Fleming concluded with notice that, amongst other things, if Ted Bluegum had not consented to sale of the property by 5:00 pm on 21 January
2008 there would be an application to the Court for an order for sale.
[57] There was a response to the McVeagh Fleming letter by letter of 14 February
2008 from a solicitor on behalf of Ted Bluegum. The letter includes the following:
The property was originally owned by Mr Bluegum’s father-in-law who died in 1967. I understand that under his will his widow then had a life interest in the property with a gift over to Mr Bluegum’s wife and her stepbrother, Mr Kingi. After his father-in-law died Mr Kingi asked Mr Bluegum and his wife to move to Whakatane to look after the mother. Mr Bluegum was reluctant to do this as he had a good job in the dairy factory at Waiuku. Mr Kingi then promised that if Mr Bluegum relocated to Whakatane then he, Mr Kingi, would sign over his half share in the property to his stepsister, Mr Bluegum’s wife.
Mr Bluegum and his wife then moved to Whakatane and looked after his mother-in-law until she died in July 1976. They continued to live in the house until Mr Bluegum’s wife died in 1994.
Since that time Mr Bluegum has maintained the property and paid the rates and insurance premiums. The title was in the name of the Maori Trustee and there was a long-term agreement for the sale to Mr Bluegum’s father-in-law. For some time Mr Bluegum paid $20.00 a week to the Maori Trustee, and then made a final payment of $1,313.29 in July 1983.
Mr Kingi has had nothing to do with the property for some forty years, and it appears that he had virtually abandoned it.
In the circumstances it appears clear that Mr Bluegum is entitled to a claim on the late Mr Kingi’s half share of the property by way of a constructive trust. If an application is made to the court for an order that the property be sold, Mr Bluegum will be filing a counterclaim that he is entitled to the whole of the property.
[58] Somewhat surprisingly, this letter was not referred to in the evidence for the plaintiff although related correspondence was produced through Mr Hill. In noting that omission I am not intending to suggest that Brian Hill was remiss in any way for the absence of a reference to this letter. It should nevertheless have been part of the narrative presented by the plaintiff because, as presented, it appeared that Ted Bluegum had never asserted what he now assets until the proceeding was issued. Proceedings were issued in June 2008.
Assessment
Introduction
[59] At the conclusion of the evidence the plaintiff withdrew its claims against Ted Bluegum for damages and other forms of financial compensation. That left for determination, as the central issue, whether there was an agreement made in 1967 as alleged by Ted Bluegum and his brother and sister-in-law. I will refer to this contention as “the defence case”.
[60] If the defence case is not made out there is the further question whether there is a resulting trust in favour of Ted Bluegum because he paid most of the purchase price for the land.
[61] If the defence case, or the alternative resulting trust claim, is not made out, it was accepted by Mr McArthur on behalf of Ted Bluegum that there should be an order for sale.
[62] Submissions of law advanced in support of the defence case were directed principally to equitable estoppel and constructive trusts. This was also the main focus of Mr Telle’s submissions on law for the plaintiff in response to the defence case. However, the substance of the defence pleading was that there was an oral agreement between Wipere Kingi on the one hand and Kura and Ted Bluegum on the other.
[63] I will, at a later point, make some observations on equitable estoppel and its application in this case. There will also be a need to deal briefly with the fact that the defence case is that there was an agreement for transfer of an interest in land, but this agreement was not in writing, as generally required by the Contracts Enforcement Act 1956 and, since 1 January 2008, by the Property Law Act 2007. My assessment, however, is primarily concerned with an assessment of the evidence. This is determinative of the outcome. My conclusion is that the defence case is made out as a matter of fact. I will consider this under a number of sub-headings.
The defence case : credibility and reliability
[64] The defence case involves an assertion that an agreement was made with a person who has died.6 The onus of proving the agreement is on Ted Bluegum. As Courts have said many times over the years in relation to promises allegedly made by, or an oral agreement made with, a person who has since died, the evidence must be scrutinised with care. However, this does not mean that the standard of proof is in some way higher than the balance of probabilities. This is the standard of proof that
applies in all civil cases: see Z v Dental Complaints Assessment Committee.7
6 The reference to “a person who has died” is a reference to Wipere Kingi. Perhaps, strictly speaking, this is a case where both parties to the agreement have died – Kura Bluegum as well as Wipere Kingi. However, Ted Bluegum was in substance a necessary party because his agreement was required for the move from Waiuku.
7 Z v Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1. And see the passages cited at [98] from Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J, and at [100] from Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586 per Lord Nicholls.
[65] In this case there are three witnesses who testify to an agreement as alleged in the defence case. One of these witnesses, Ted Bluegum, has a vested interest in the outcome. That does not mean that the starting point is to doubt his evidence, but it does emphasise the need to give his evidence careful scrutiny. It has been given that scrutiny. At the end of Ted Bluegum’s evidence I was not left with an impression that he was not a credible witness. He was a witness who gave his evidence in a straightforward way. And in cross-examination there were unrehearsed answers to questions which could not reasonably have been anticipated and which were convincing answers given in an uncontrived way. My assessment that Ted Bluegum was a credible witness remained at the conclusion of all of the evidence and on further assessment.
[66] Ted Bluegum’s evidence is corroborated by the evidence of his brother and sister-in-law. This is important corroboration because it is direct corroboration – further direct evidence of what was discussed between Wipere Kingi and Kura and Ted Bluegum. There is no inconsistency between the evidence of the three witnesses on the points of substance in relation to the agreement. The credibility of all three witnesses is enhanced, to an extent, by the fact that there are some differences between them, but differences which do not leave me in doubt as to the reliability of the evidence on essential questions. I take account of the fact that this is supporting evidence from a brother and sister-in-law, but I also take account of the fact that neither of them has a vested interest.
[67] As earlier recorded, the three witnesses were cross-examined at some length, and Ted Bluegum extensively. None of the witnesses resiled from their evidence, or gave answers which left me with any uncertainty as to their credibility, or as to the reliability of their recollection of the essential points of the discussions in Whakatane and Waiuku.
[68] I am satisfied that there is no basis for concluding that there has been collusion between the three witnesses. There was no suggestion for the plaintiff that there had been, but it is nevertheless a matter that required assessment.
The defence case : plausibility
[69] The plaintiff accepts that an agreement was reached between Wipere Kingi and Kura Bluegum. This, in itself, is a point of some significance. It arises out of the need for the plaintiff to explain why Kura and Ted Bluegum did uproot themselves from Waiuku and move with their children to Whakatane. The plaintiff’s contention as to what was agreed requires assessment, but the starting point of some significance is the plaintiff’s acceptance that something was agreed.
[70] The plaintiff’s case is that Kura and Ted Bluegum moved to Waiuku for two reasons; a sense of family duty and agreement on the part of Wipere Kingi that, if they moved to Whakatane, they would have exclusive use of the property. Mr Telle submitted that the terms of the agreement were to be inferred from all of the evidence. The period of exclusive use that Mr Telle submitted the Bluegums were entitled to was until the death of Uru Horopapera.
[71] There is no direct evidence for the plaintiff’s contentions as to the terms of the agreement. That in itself is not decisive, but it does present the plaintiff with a difficulty in the face of the direct and credible evidence of Ted, James and Elizabeth Bluegum.
[72] Assessing the matter more broadly, I am satisfied that the defence case is plausible and the plaintiff’s case is not. The unchallenged evidence of Ted Bluegum is that he and his wife were well settled in Waiuku. He had a good job with good prospects and a house provided by his employer. They had three children, one just born. There was evidence from Ted Bluegum about his concerns as to whether he could get employment in Whakatane and, if he could, whether it would be comparable to the employment, with associated benefits, that he had in Waiuku. I accept Ted Bluegum’s evidence that he had difficulties in getting good and steady employment in Whakatane. This lends some weight to his evidence that he had concerns about moving. The commitment of Kura Bluegum to her mother was readily acknowledged, but as Ted Bluegum said in evidence, which I accept, Wipere Kingi had an equal obligation. The question was: which of Uru’s children would go to Whakatane to look after her?
[73] Wipere Kingi was settled in Auckland, but from the Bluegums’ point of view there were fewer reasons for him to stay in Auckland than for them to stay in Waiuku. In particular, as Ted Bluegum said, Wipere Kingi had no children and he was unmarried. Wipere Kingi wanted a family member to care for his mother, but he did not want it to be him.
[74] I am satisfied that an inducement of substance was required from Wipere Kingi to get his sister and brother-in-law to move to Whakatane and, in consequence, to enable him to stay in Auckland.
[75] The evidence of the discussions and the agreement that resulted for the defendant is convincing, and decidedly so when compared with the case for the plaintiff as to the reasons for and terms of the agreement. The plaintiff’s contention that the Bluegums were persuaded to go to Whakatane because Wipere Kingi agreed that they could have exclusive use of the property until Uru Horopapera died is unconvincing. That would be no incentive at all. If the Bluegums went to Whakatane to look after Uru Horopapera, they would be staying in the Whakatane property with her in any event. And there would be no room for anyone else. It is an implausible argument to seek to explain why the Bluegums did move. No other theory was put forward apart from familial obligation. That proposition was convincingly answered by Ted Bluegum in the evidence set out at [20].
[76] A further central point in support of the defence case is the incontrovertible evidence as to what actually happened – within a month or so of Tom Horopapera’s death Ted Bluegum gave up a good job, he and his wife gave up the home provided by the company, and they all moved to Whakatane.
[77] Other facts as to what happened further support the defence case. These include the following, in particular. All payments for the balance of the purchase price, which was the total purchase price apart from the deposit paid by Tom Horopapera, were met by Ted Bluegum. None of the purchase price was paid by Wipere Kingi notwithstanding the fact that he was, in a formal legal sense, equally liable with his sister. All outgoings and other expenses for the property were met by Ted Bluegum. After Uru Horopapera’s death, Ted Bluegum’s meeting the outgoings
for the property was offset by the fact that he and his family had the use of the property, either for occupation or rental income if he and his wife chose. The outgoings and other expenses were nevertheless met in full without any request for a contribution from Wipere Kingi. Moreover, between 1967, when Tom Horopapera died, and 1976, when Uru Horopapera died, Ted Bluegum had no income from the property from which he could meet the outgoings for it, including outgoings related to his mother-in-law’s occupation.
The plaintiff’s case : the significance of the formal documents
[78] The plaintiff, understandably, placed emphasis on documents which may appear to be inconsistent with the defence case. The document probably given most emphasis is the agreement for sale and purchase between Wipere Kingi and Kura Bluegum, and the Maori Trustee. This, on the face of it, is not consistent with the defence case. As the plaintiff submitted: if there had been an agreement as alleged, there was no reason for Wipere Kingi to be a party to the agreement as one of the purchasers; if there had been an agreement as alleged, why did Kura Bluegum enter into the agreement with her brother?
[79] The fact that there was an agreement in these terms does not, by itself or in conjunction with the further matters that I will consider, persuade me that there was not an agreement as contended in the defence case. My reasons are as follows. I infer that an agreement was drafted which recorded Wipere Kingi and Kura Bluegum as joint purchasers because it was a document of a formal nature and prepared either by the Maori Trustee or by Mr Harvey following Uru Horopapera’s death. They would have proceeded on the basis of the existing legal arrangements. These were that beneficial ownership had been with Tom Horopapera and his will, prepared by Mr Harvey, left the property in equal shares to Wipere Kingi and Kura Bluegum on the death of Uru Horopapera. The executor of Tom Horopapera’s will had taken no steps in the 11 years since Tom Horopapera’s death. No payments had been made for the property other than the original deposit. In the absence of clear instructions from both Wipere Kingi and Kura Bluegum that title was to go entirely to Kura
Bluegum, completion of the agreement for sale to Wipere Kingi and Kura Bluegum was a conventional legal step to take.
[80] There is no direct evidence of instructions given to Mr Harvey for the preparation and completion of the agreement for sale and purchase. Ted Bluegum’s evidence was that he left it with his wife to deal with legal formalities relating to the property following the death of Uru Horopapera. He was not involved in discussions with Mr Harvey. He also said that he took his wife to Mr Harvey’s office for the document to be completed and that Wipere Kingi was not there at that time.
[81] I am satisfied from the evidence that there are two reasonable probabilities. One is that Kura Bluegum simply did not think to take the matter up with Mr Harvey. The other is that Kura Bluegum accepted the agreement for sale and purchase as the next appropriate step of a legal nature without regarding it as contrary to the agreement she had made with her brother. One or both of these things may have occurred. A failure by Kura Bluegum to mention to Mr Harvey that she had the agreement with her brother does not in my judgment, when weighed with other relevant evidence, support the proposition that there was no agreement. My assessment is that Ted and Kura Bluegum had an approach to legal formalities and lawyers which was to an extent diffident and also unsophisticated. This is my conclusion notwithstanding evidence that Ted Bluegum was able to take appropriate steps to get property interests of his own dealt with in an appropriate way. This was a matter put to Ted Bluegum in cross-examination. In any event, the relevant enquiry at this point concerns Kura Bluegum. From the available evidence, I am satisfied that Kura Bluegum would not have taken any firm initiative to seek to have the 1967 agreement formally documented with her brother, or formally given effect in some other way. In addition, I am satisfied that there was a degree of relative indifference to formal legal documentation compared with a belief in what was right in relation to ownership; a belief or attitude that formal legal title was less important than possession and family knowledge as to who had entitlement.
[82] The casual approach to formal legal documentation may also be seen in the manner in which an interest in the property was first acquired by Tom Horopapera. Apparently the agreement was not made with the registered proprietor. It appears
that nothing was recorded in writing; at least nothing in writing has been produced. The casual approach is borne out to an extent by the fact that the lawyers, when the agreement for sale and purchase was prepared, referred to the “arrangement” that Tom Horopapera had with the Proprietors of the Muriwai Block. And he had paid a deposit of $200 but nothing more. Nothing more was in fact paid until Ted Bluegum started paying some time after May 1978.
[83] Once the total owing under the agreement for sale and purchase had been paid, title was transferred into the joint names of Wipere Kingi and Kura Bluegum. Nothing turns on this fact. It provides the formal foundation for the plaintiff’s claim, but no inference adverse to the defence case can be drawn from the transfer. Completion of the memorandum of transfer and its registration did not require any involvement of Kura Bluegum or Wipere Kingi.
[84] The plaintiff also relied on the statement of value of the estate in Ted Bluegum’s affidavit in support of the application for letters of administration for his wife’s estate. The value of Kura Bluegum’s estate was put at a figure which appeared to be close to half the capital value of the entire property, based on a rating valuation.8 The affidavit was prepared by Mr Harvey. I infer that Mr Harvey would have proceeded on this point without need for instructions: he knew that Kura Bluegum was registered as an owner of one-half and a rating valuation would be the simplest way of providing a figure. I am satisfied that Ted Bluegum would not have
taken any particular care in assessing the fine details of the affidavit let alone abstract implications. This is borne out by the fact that the affidavit purportedly records, in the usual way, the names of all of the children of Kura Bluegum, and being also the children of Ted Bluegum, but the name of one of the children is missing – the Bluegums’ second oldest child. This is a factual statement in an affidavit that would have been more readily picked up by Mr Bluegum than implications from the matters relied on by the plaintiff. When he was asked about this in evidence it took him a bit of time to realise there was an error.
The plaintiff’s case : the discussion in Katikati
[85] For the plaintiff it was submitted that the evidence of Ronda Kingi and Sidney Williams about the discussion between Wipere Kingi and Ted Bluegum in Katikati was credible and reliable. From this it was submitted that the offer Ted Bluegum is said to have made to buy Wipere Kingi’s half share from him could not be reconciled with Ted Bluegum’s evidence about the 1967 agreement.
[86] There is a question whether there was a meeting in Katikati at all. For reasons I will come to, I am satisfied that the defence case is made out even if the plaintiff’s evidence about the Katikati meeting is accepted. However, I will record my assessment of the evidence on the question whether Wipere Kingi, Ronda Kingi and Sidney Williams did stay the night with Ted Bluegum in Katikati and on the alleged discussion between Wipere Kingi and Ted Bluegum.
[87] Ted Bluegum was firm in his evidence that there was no meeting. He confirmed this at the end of his evidence in a question from me:9
Q. Mr Bluegum, do you think it’s possible that Ronda and Sid Williams may have come to your house at some point and you’ve simply forgotten about it?
A. No Your Honour. I have never ever met that man and Ronda’s never ever lived with me, never ever stayed with me.
[88] There were reasonably significant inconsistencies between the evidence of Ronda Kingi and Sidney Williams. These went beyond matters of detail that might reasonably be explained by difficulty in remembering an event approximately 12 years earlier. The inconsistencies are on points which did leave me with a degree of uncertainty as to whether there had been a visit to Ted Bluegum’s home in Katikati. One reasonably telling inconsistency was on a point of detail, but one which I consider could not readily be accepted to arise from faulty recollection because of the passage of time. This was the time of year of the visit. Sidney Williams said it was at the end of the year. He also said that it was at the end of 1999. Ronda Kingi said it was “May, March – May”. When asked whether she could remember whether
it was summer, winter, autumn or spring she said: “Probably autumn, going on autumn, going on winter. It was cold anyway, coldish.” She also said that it was in
1998. Other inconsistencies between the evidence of Ronda Kingi and Sidney Williams are noted below, together with major reservations as to the reliability of the evidence of Ronda Kingi in particular.
[89] I am uncertain as to whether there was a meeting in Katikati. But I am not driven to a conclusion that Sidney Williams and Ronda Kingi lied on oath when they said they went to Katikati and stayed the night in Ted Bluegum’s house with Wipere Kingi. But I am also not driven to a conclusion that Ted Bluegum lied on oath when he said there was no visit and that he had never met Sidney Williams. He may be right. But it seems more likely that he simply has no recollection. This possibility is not based simply on the passage of time. There is evidence from Ronda Kingi and Sidney Williams that everyone was drinking that night. There was also the evidence of Yvonne Campbell who lived with Ted Bluegum from 1996 to 2000. Because she acknowledged in her evidence that there were occasions when she was away from the home it is quite possible that the visit could have occurred when she was away. There is an element of doubt in respect of the plaintiff’s case because if the visit had occurred, and Ted Bluegum remembered it, it is something which he might have mentioned to Yvonne Campbell. However, her evidence is inconclusive and, for reasons to which I now turn, a conclusion that there was a visit does not take the plaintiff’s case very far.
[90] Proceeding on the basis that there was a visit, I do not consider that I can attach much weight to the evidence of the discussion between Wipere Kingi and Ted Bluegum. There were inconsistencies between Ronda Kingi and Sidney Williams as to what Ted Bluegum said. Ronda Kingi said Ted Bluegum offered to buy Wipere Kingi’s share for $60,000. Sidney Williams said that he offered $50,000. Normally that might be regarded as a difference of no great moment. However, other evidence of these two witnesses indicated that both of them effectively claimed they were alert to questions of value of the land. Significantly, in relation to inconsistencies, Ronda Kingi said that she thought Ted Bluegum had received or seen a Government valuation at around $120,000 and that was the basis for the figure of $60,000. However, Sidney Williams said that Ted Bluegum did not justify the figure he gave
of $50,000 except by reference to the possibility that a cliff behind the Whakatane property could collapse and affect value.
[91] I do have major reservations as to whether Ronda Kingi had any clear recollection of anything that was done or occurred at Ted Bluegum’s home. There were other significant differences between her evidence in cross-examination, and the evidence of Sidney Williams, and between her prepared brief of evidence and her evidence in cross-examination. This did not concern the discussion between Wipere Kingi and Ted Bluegum, but questions as to what she did and where she slept. Ronda Kingi in fact had almost no recollection of Ted Bluegum’s house. As cross- examination proceeded it became clear that she could not even remember where she slept that night. It eventually emerged that she was very drunk. I do not record these matters in order to criticise Ronda Kingi. The relevant point is that, because she clearly did not remember things which I consider she should have been capable of remembering at least in broad terms, I am unable to accept that she was nevertheless capable of remembering the details of a discussion between Wipere Kingi and Ted Bluegum.
[92] The only evidence of the alleged conversation between Wipere Kingi and Ted Bluegum to which some weight might be attached is, therefore, the evidence of Sidney Williams. However, I am unable to attach significant weight to this evidence. Although there are inconsistencies between his evidence and that of Ronda Kingi as to what was discussed, the broad thrust of the evidence of the two witnesses is similar. How this broad similarity has come about, notwithstanding Ronda Kingi’s almost total lack of memory of other things, raises a concern at least as to the reliability of their evidence of any conversation between Wipere Kingi and Ted Bluegum. There are further matters bearing on the weight to be attached to the evidence. The evidence of both witnesses is decidedly lacking in detail. The context of the discussion, and the context in particular of the alleged offer from Ted Bluegum, is absent. Statements attributed to Ted Bluegum are also difficult to reconcile. He is said to have insisted on sale of the property but also that he offered to buy Wipere Kingi’s share.
[93] If, contrary to this conclusion, the plaintiff’s evidence is treated as sufficiently reliable to conclude that Ted Bluegum did make an offer to Wipere Kingi to buy his share, this does not demonstrate that the defence case is not made out. Put another way, if I am wrong in my conclusion as to the reliability of the plaintiff’s evidence about the offer, the fact of the offer would not mean that the agreement had not been made between Wipere Kingi and Kura Bluegum in 1967. If Wipere Kingi, in about 1998 or 1999, was asserting to Ted Bluegum that he, Wipere Kingi, was entitled to a half share of the property and entitled to go and live there if he wished, notwithstanding the 1967 agreement, Ted Bluegum was in a difficult position. His wife, with whom the agreement was made as the co-beneficiary, was dead. Title to half the property was in Wipere Kingi’s name. An offer to buy Wipere Kingi’s half share for a sum substantially less than its true value would be a common enough way of seeking to bring a difficult problem quickly to an end. Added to this, accepting the thrust of the plaintiff’s evidence, is the evidence of drinking that occurred that evening. There is also the evidence of Sidney Williams that later in the evening, after he and Ronda Kingi had gone to bed, they were awakened “early in the morning as a huge argument erupted between Wipere and Ted and they screamed and shouted very loudly at each other”. Ronda Kingi also said that there was “an extremely heated argument”. (Although, even in this regard, there were not insignificant inconsistencies between Ronda Kingi and Sidney Williams as to what each of them then did.) Neither Sidney Williams nor Ronda Kingi gave any evidence as to what the argument was about. Based on all of the evidence I regard as reliable, the likely cause of a “huge argument” would be Wipere Kingi refusing to honour the commitment he made in 1967. This is also consistent with the evidence of Ronda Kingi that the following morning Ted Bluegum told them it was a waste of time to go to Whakatane.
Other evidence
[94] There is some other evidence, earlier outlined, that Wipere Kingi did assert an interest in the Whakatane property apparently inconsistent with an agreement by him in 1967 to transfer title to his sister. I do not attach any significant weight to this evidence. People often enough assert an interest in a property contrary to an earlier
agreement to transfer the interest to someone else. In this case there are two prominent features from the evidence as a whole relating to interest shown in the property by Wipere Kingi. One is that from 1967 until the late 1990s, at the earliest, Wipere Kingi did not take any active steps to assert a claim to the property apart from the unannounced visit he made with his father before Kura Bluegum died. An inference may be drawn from the evidence about the visit before Kura Bluegum died that Wipere Kingi was being pressed by his father for financial reasons. The evidence of what followed after the visit, including Kura Bluegum’s trip to
Auckland, is consistent with the defence case.10 The second prominent feature is
that, on the basis of the evidence for the plaintiff, the first direct, active step taken by Wipere Kingi to claim an interest in the property did not occur until after his sister had died. I attach some weight to this fact because Kura Bluegum was the other party with the original beneficial interest and the person with whom Wipere Kingi shared legal title. Associated with this is evidence that the relationship between Ted Bluegum and Wipere Kingi was not a good one.
[95] There is also some support for the defence case in the evidence of Geraldine Takarangi.11 The plaintiff appears to have adduced this evidence as evidence that Wipere Kingi said he had an interest in the Whakatane property. But Ted Bluegum’s dealings with Wipere Kingi, as described by Geraldine Takarangi, are consistent with the defence case. Ted Bluegum wanted Wipere Kingi to transfer title before Wipere Kingi died and, importantly, Ted Bluegum was not offering to pay Wipere Kingi any money for his share.
[96] I have earlier summarised the main aspects of other evidence for the plaintiff. In broad terms this evidence indicates that Wipere Kingi was saying to others that he had an interest in the Whakatane property. However, as with other evidence to similar effect already discussed, it does not demonstrate that an agreement was not made in 1967 as contended in the defence case. When this evidence is assessed in relation to all relevant evidence, my conclusion is that it is evidence that Wipere
Kingi was asserting ownership contrary to an agreement entered into with his sister.
10 The evidence is noted at [35].
11 See in particular the evidence noted above at [46].
Conclusion on the defence case and points of law in that regard
[97] For all of these reasons I am satisfied that the defence case is made out. There was an agreement in 1967 as contended by the defence witnesses.
[98] I am satisfied that the agreement is enforceable notwithstanding that it is not in writing, as required by s 2(2) of the Contracts Enforcement Act 1956 (in force when the agreement was made) and s 25 of the Property Law Act 2007 (in force from 1 January 2008 following which the counterclaim in this case was issued). The doctrine of part performance applied under the 1956 Act and applies under the Property Law Act pursuant to s 26 of that Act. If there has been part performance in law the agreement is enforceable.
[99] For the doctrine of part performance to apply there are four essential requirements: an oral agreement that would be enforceable but for the statutory requirement of writing; steps taken under the agreement by the party seeking to enforce it; the steps were taken on the basis that there was an agreement; a conclusion that it would be unconscionable for the other party to rely on the statutory requirement of writing.12
[100] Counsel did not address the question of part performance as such. However, there were submissions on equitable estoppel. Some of the elements of the modern doctrine of equitable estoppel are found in, or are similar to, elements of the doctrine of part performance. Both counsel accepted that the elements of equitable estoppel
are as summarised in Equity and Trusts in New Zealand.13 Adapting the elements
summarised in that text to the facts of this case, they are;
(a) A belief or expectation was created or encouraged through some action or representation by Wipere Kingi.
12 See Burrows, Finn & Todd Law of Contract in New Zealand (3rd ed, LexisNexis, Wellington 2007)
at 262.
13 Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Brookers, Wellington, 2009) at 613-
614.
(b) The belief or expectation was reasonably relied on by Kura and Ted
Bluegum.
(c) Detriment will be suffered by the successors of Kura Bluegum and by
Ted Bluegum if the belief or expectation is departed from.
(d)It would be unconscionable for Wipere Kingi, through his personal representatives, to depart from the belief or expectation.
[101] I have already concluded that there was an oral agreement as alleged by Ted Bluegum. That establishes the first element for part performance and is the equivalent of the first element of equitable estoppel. I have also held as a matter of fact that steps were taken under the agreement by Kura and Ted Bluegum. That is the equivalent of part of the second element of equitable estoppel.
[102] The next question for part performance is whether the steps taken by Kura and Ted Bluegum – the move from Waiuku and looking after Uru Horopapera – were taken on the basis that there was an agreement. In broad terms this is the equivalent of acting in reliance on the representation or conduct for the purposes of equitable estoppel. The evidence establishes that Kura and Ted Bluegum did make the move and did look after Uru Horopapera on the basis that there was an agreement with Wipere Kingi. In terms of equitable estoppel I am satisfied that it was reasonable for them to rely on Wipere Kingi’s undertaking. Included in this is a conclusion that it was reasonable for both Kura and Ted Bluegum to expect that Wipere Kingi would in the end honour his undertaking.
[103] The third element of equitable estoppel is that detriment will be suffered if Wipere Kingi’s undertaking is not given effect. This does not have a precise equivalent in the doctrine of part performance. Although my conclusion is based on the existence of an oral agreement which is enforceable, rather than on equitable estoppel, I will briefly consider this point in a little more detail. It is sufficient to cite a passage from Equity and Trusts in New Zealand:14
The cases show that the relevant detrimental reliance may take one of two forms.15 First, the party claiming the estoppel may have spent time, effort, or money in reliance on the belief or expectation in question which would not have been spent if the representation had not been made and which is rendered worthless if the belief or expectation is abandoned. Secondly, in reliance on the belief or expectation the party claiming the estoppel may have foregone other opportunities to gain the benefit which will be lost (or avoid the detriment which will be suffered) if the belief or expectation is abandoned.
[104] Both forms of detriment are present in this case and in substantial measure. The expenditure of money alone is determinative of this point. This applies, in particular, to payment of the entire purchase price outstanding at the date the agreement was entered into or, in terms of equitable estoppel, the date on which Wipere Kingi gave the undertaking. The alternative form of detrimental reliance is also borne out by the evidence, as already discussed.
[105] The final element requiring consideration, under part performance or equitable estoppel, is unconscionability. Although the expression of this element under each doctrine is slightly different, the substance is the same. I am satisfied that it would be unconscionable for the plaintiff to rely on the absence of a written agreement to seek to defeat the agreement. It would be unconscionable to permit Wipere Kingi’s estate not to honour his undertaking; to depart from the expectation from his promise. This conclusion flows from the conclusion on the other elements. As an agreement, it was something Wipere Kingi was personally anxious to achieve and which required him to offer consideration of substance – agreement to transfer his interest – in order to induce his sister and brother-in-law to move to Whakatane and, by doing that, to relieve him of the burden of doing so. Unconscionability of this nature applies equally to an assessment of equitable estoppel. There are broader considerations of unconscionability. If Wipere Kingi’s half share is not transferred to Ted Bluegum as administrator of his wife’s estate, Wipere Kingi and, through him, his estate will have reaped all the benefit of his being able to remain in Auckland, and all of the benefit of having his mother properly looked after without any contribution from him, and will then reap all the benefit of what he offered in order to secure those other benefits. The benefits to Wipere Kingi include a house in Grey Lynn in Auckland and a superannuation fund. The other side of this, relevant to
unconscionability as well as to detriment, is that both Kura and Ted Bluegum will have invested everything they did invest in going to Whakatane and, in doing so, lost the opportunity to buy their own home. Ted Bluegum will end up with no interest in a home as originally planned in Waiuku and his wife’s estate will have no more than what it would have got under Tom Horopapera’s will without doing anything.
[106] The oral agreement that I have already found was made is, for these reasons, an enforceable agreement. In the absence of an agreement it would also be enforceable pursuant to the doctrine of equitable estoppel. The defendant is entitled to the order he seeks.
Resulting trust
[107] One of the ways in which a resulting trust can arise is where one person, A, pays for the purchase price of property which is then vested in another person, B. There is then a presumption that A did not intend to make a gift to B. The result is that B holds the property in trust for A. Applying this to the facts of this case I am satisfied that the presumption arises. Ted Bluegum (A) paid for the purchase of the Whakatane property but it was registered in the names of Wipere Kingi (B) and Kura Bluegum. At this point there would be a presumption that Ted Bluegum did not intend to make a gift to Wipere Kingi. In consequence, unless the presumption is rebutted, the personal representative of Wipere Kingi holds title in trust for Ted Bluegum.
[108] The presumption can be rebutted in various ways. These do not require analysis.16 There is no evidence in this case which might provide a foundation for a conclusion that, notwithstanding the fact that Ted Bluegum paid the entire purchase price, save the deposit, beneficial ownership of the half share was to remain with, or go to, Wipere Kingi. Perhaps the strongest evidence for the plaintiff that there was no agreement in 1967, is the agreement for sale and purchase made in 1978 with Wipere Kingi being a joint purchaser with his sister. This evidence is of no avail to the plaintiff when considering whether the presumption of a resulting trust is
rebutted. This is because all the payments made by Ted Bluegum, and being 100% of the sum that would have otherwise been payable by Wipere Kingi, were made after this agreement was entered into.
[109] The payment made by Ted Bluegum was 13/15ths of the original purchase price of $1,500. As earlier recorded, Tom Horopapera had paid the deposit of $200. Ted Bluegum paid the balance of the principal of $1,300. He also paid interest and some other expenses related to the purchase. Although, arithmetically, Ted Bluegum paid 13/15ths, I consider that he is entitled to 100% of Wipere Kingi’s half share, pursuant to a resulting trust. This is because Ted Bluegum paid 100% of the sum otherwise payable by Wipere Kingi for Wipere Kingi to acquire a beneficial interest.
[110] On this alternative basis the defendant is entitled to succeed on his counterclaim. And although this is an alternative claim, I further consider that it is justification for an order that the half share presently registered in the plaintiff’s name should be transferred to Ted Bluegum in his own right, rather than to him as administrator of his wife’s estate.
Conclusion
[111] There is a declaration, as sought, that the defendant is the beneficial owner of
the half share in the property presently registered in the plaintiff’s name.
[112] There is an order that the plaintiff transfer to the defendant title to the half
share to the property presently registered in the plaintiff’s name.
Costs
[113] The defendant, having succeeded, would be entitled to costs in accordance with the general rule. However, the Court is not bound to apply the general rule if there is good reason not to do so. Because there have been no submissions on costs I cannot express any concluded view on the matter. However, my tentative view, subject to any submissions, is that this is a case where each party should bear their
own costs. It was understandable that the plaintiff, with responsibilities as executor and trustee of the will, proceeded as he did to seek to realise what appeared to be an asset of the estate of Wipere Kingi. Although the plaintiff had clear notice of Ted Bluegum’s contention, it was not on the face of it unreasonable to have the contention thoroughly tested in Court, particularly having regard to contrary indications from formal documents.
[114] If, notwithstanding these tentative observations, the defendant wishes to seek costs, a memorandum should be filed within four weeks of the date of this judgment,
with a response for the plaintiff three weeks after that.
Peter Woodhouse J
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