Hingston v Hingston - [2023] NZHC 649

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2012-470-918

[2023] NZHC 649

BETWEEN
KEITH HAMILTON HINGSTON

Plaintiff

AND

DAVID LEWIS HINGSTON and

ANTHONY MURRAY RICHARDSON as

trustees of the Hingston House Trust Defendants

On the Papers

Appearances:

J W Howell for the Plaintiff in High Court proceeding/ Respondent in Court of Appeal proceeding

D G Dewar and J J Pietras for the Defendants in High Court proceeding

C J Griggs and J J Pietras for the Appellants in Court of Appeal proceeding

Judgment:

28 March 2023

JUDGMENT (No 2) OF GWYN J

Introduction

[1] This proceeding was brought by Keith Hingston (Keith) against his son David Hingston (David) and Anthony Richardson, as trustees of the Hingston House Trust (the defendants).

[2] In the proceeding, Keith pleaded a number of causes of action against the defendants: undue influence, unconscionable bargain, breach of fiduciary duty, unjust enrichment, breach of contract and misrepresentation. I issued a judgment on Keith’s claims on 23 December 2021.1 The Judgment was appealed to the Court of Appeal

1 Hingston v Hingston [2021] NZHC 3621 [Judgment].

HINGSTON v HINGSTON [2023] NZHC 649 [28 March 2023]

which issued its judgment on 22 November 2022.2 The Court of Appeal has remitted the defendants’ counterclaim back to this Court for consideration, based on the evidence and submissions adduced at trial.3

Background

[3] It is necessary to set out the background to the dispute in order to understand the counterclaim.

[4]All of Keith’s claims arose out of the following series of events.

[5] In 2007, when he was in his early 70s, Keith’s second marriage, to Shona, ended. At the time of separation they owned a house together in Welcome Bay, Tauranga (the house). Following relationship property proceedings, a Family Court order made by consent on 8 September 2009 required Keith to pay Shona $295,000 by 23 October 2009, failing which the house was to be marketed for sale and Shona to receive $295,000 of the sale proceeds. By the time the 8 September 2009 consent order was arrived at, approximately $40,000 in legal and accounting fees had been incurred on Keith’s behalf.4

[6] Keith was unable to raise the money to pay Shona her entitlement and he turned to David for assistance. Keith, by then in his mid-70s, and the Hingston House Trust, a trust set up by David for the purpose (the Trust), entered into a series of agreements on 19 October 2009 which provided, among other things, for the sale of the house to the Trust, payment of the monies owing to Shona, and a right for Keith to occupy the house for life, on certain terms.

[7]Some detail of these transactions is necessary to understand the counterclaim.

For ease of reference, I set out the relevant paragraphs of the Judgment as follows:5

[16] On 15 October 2009 David settled the Trust, with himself and Anthony Richardson as trustees. The principal discretionary beneficiaries of the Trust are David, his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hingston v Hingston

Details

AGLC: Hingston v Hingston [2023] NZHC 649
Case: [2023] NZHC 649
Decision Date: 28 March 2023

CaseChat Overview and Summary

Keith Hingston initiated legal proceedings against his son, David Hingston, and Anthony Richardson, as trustees of the Hingston House Trust. Keith alleged undue influence, unconscionable bargain, breach of fiduciary duty, unjust enrichment, breach of contract, and misrepresentation. The High Court ruled in favour of Keith on the undue influence and breach of contract claims. David and the trustees appealed, and the Court of Appeal overturned the undue influence finding but upheld the breach of contract ruling. The Court of Appeal referred the defendants' counterclaim back to the High Court for consideration.

The counterclaim related to the defendants' assertion that Keith had breached the agreement to occupy the house, allowing Petra to live there and selling off some of the chattels. The court considered the counterclaim in light of the breach of the agreement to occupy by the Trust. The court found that Keith had the benefit of the agreement to occupy for nearly sixteen months before it was breached by the Trust. The court found no evidence to support the claim that Keith had breached the agreement by allowing Petra to live in the house or that he owed any money for the capital payments made to Gwen when she moved out. The court also found insufficient evidence to support a claim for indemnification of legal expenses incurred by David on Keith’s behalf. Therefore, the counterclaim was dismissed. The court did not consider the question of costs at this stage, as it was to be listed in the Judge’s Chambers List.

Orders