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Hingston v Hingston

Hingston v Hingston

Case [2021] NZHC 3621 23 December 2021

Undue Influence

Unconscionable Bargain

Breach of Fiduciary Duty

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2012-470-918

[2021] NZHC 3621

BETWEEN
KEITH HAMILTON HINGSTON

First Plaintiff

GWENDOLINE MYRA HINGSTON
Second Plaintiff (DISCONTINUED)

AND

DAVID LEWIS HINGSTON

First Defendant

DAVID LEWIS HINGSTON AS A TRUSTEE OF THE HINGSTON HOUSE TRUST

Second Defendant

ANTHONY RICHARDSON AS A TRUSTEE OF THE HINGSTON HOUSE TRUST

Third Defendant

Continued…

Hearing: 21-25 June 2021

Appearances:

J W Howell for the First Plaintiff

D G Dewar and J J Pietras for the Defendants

Judgment:

23 December 2021

JUDGMENT OF GWYN J

HINGSTON v HINGSTON [2021] NZHC 3621 [23 December 2021]

Continued…

CIV-2017-485-952

BETWEEN

KEITH HAMILTON HINGSTON
Plaintiff

AND

DAVID LEWIS HINGSTON and ANTHONY MURRAY RICHARDSON as

trustees of the Hingston House Trust Defendants

Table of Contents

Introduction [1]

The proceedings [5]

Background [7]

Keith’s separation from Shona [8]

Sale of the house to the Trust [16]

Dispute between Keith and David [22]

Current position [33]

The 2017 proceeding [38]

Privilege [39]

Was a settlement reached? [42]

Discussion [49]

The 2012 proceeding [54]

Undue influence [63]

Was there a relationship of trust and confidence between Keith and David? [70] Does the transaction call for explanation? [76]
Has David rebutted the presumption that the transaction was brought about because of that influence? [86]

Unconscionable bargain [95]

Was Keith under a significant disability? [100]

Breach of fiduciary duty [101]

Did David owe Keith a fiduciary duty? [106]
Did David act in breach of that duty, and instead act in his own interests, in the way he conducted himself during the 2009 Family Court proceedings? [107]

Unjust enrichment [110]

Breach of contract and affirmative defences [114] Discussion [118]

Misrepresentation [127]

Result [132]

Relief [133]

Introduction

[1] This is a dispute between Keith Hingston and his son David Hingston. They have been in dispute since 2010 and in litigation since 2012.

[2] 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.

[3] However, 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.

[4] The relationship between Keith and David subsequently broke down. Keith left the house on 2 February 2011 and has not lived there since. The…

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 [2021] NZHC 3621
Case: [2021] NZHC 3621
Decision Date: 23 December 2021

CaseChat Overview and Summary

Keith Hingston brought proceedings against his son, David Hingston, and the Hingston House Trust (the Trust). Keith claims undue influence, unconscionable bargain, breach of fiduciary duty, unjust enrichment, misrepresentation, and breach of contract. David denies these claims and argues that Keith repudiated the agreement to occupy, entitling the Trust to cancel, and that Keith's conduct towards Gwen and David, and in refusing to comply with the agreed terms of the occupancy, means he is disentitled to any relief and equity. David also counterclaims for setoff. The court found that Keith placed trust and confidence in David, as his son, and believed he would act in his best interests. Keith was therefore vulnerable to David's influence. The transaction called for explanation and David had not rebutted the presumption that the transaction was brought about because of that influence. Accordingly, the court found the claim of undue influence by David of Keith made out. The court found that Keith was not operating under a significant disability and the claim of unconscionable bargain was not made out. The court found that David owed Keith fiduciary duties, to act only in Keith’s best interests, when exercising his powers under the EPoA. However, the court was not satisfied that David actually breached those duties, in relation to the 2009 Family Court proceedings. The court found the Trust, through David, was in breach of the agreement to occupy. The court found that Keith was led to believe that the right to occupy entitled him to remain in occupation of the house for life. This was a misrepresentation. However, the court found that the facts of the case were more appropriately analysed as a breach of contract, given its findings above that the Trust breached the occupancy agreement.

Orders