Jackson v Jackson - [2017] NZHC 860

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-84 [2017] NZHC 860

BETWEEN
RAYMOND BARRY JACKSON

Plaintiff

AND

STEPHEN JAMES JACKSON First Defendant

INDA MARGARET JACKSON Second Defendant

METRO LAW Third Defendant

IRONBRIDGE REAL ESTATE LIMITED Fourth Defendant

Hearing: 26 April 2017

Appearances:

R Butler and T M Pasley for the Plaintiff
No appearance for the Defendants

Judgment:

3 May 2017

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 3 May 2017 at 11:00am
pursuant to Rule 11.5 of the High Court Rules

………………………………………………….
Registrar/Deputy Registrar

Solicitors:
Ross Holmes, Albany, Auckland, for Plaintiff

Counsel:
Rowan Butler, Auckland, for Plaintiff

JACKSON v JACKSON [2017] NZHC 860 [3 May 2017]

[1] This proceeding concerns the estate of Ivy Jackson who died on 6 April 2015 aged 91. Her husband, Fred Jackson, died on 7 October 2014. They had three children: Raymond the plaintiff, Stephen the first defendant, and Andrea, who died on 15 March 2015. Linda Jackson, the second defendant, is Stephen’s wife.

[2] Up until January 2014 Ivy and Fred lived in their home at Forrest Hill, Auckland. Ivy had made a number of wills. In all of them she provided for her children to take equally. On 6 January 2014 she suffered a stroke and went to hospital for treatment. On discharge from hospital she was told that because of her health she could not go back to live in her home with Fred. Instead, they moved to a rest home in Northcote, Auckland. They had enough saved to pay the rest home fees without having to sell their home.

[3] On 13 January 2014, Ivy signed two enduring powers of attorney in favour of Stephen: one for property and the other for welfare. The third defendant law firm acted for her on the powers of attorney. Using the authority given by the property enduring power of attorney, Stephen signed a listing agreement with the fourth defendant, a real estate agent, and the same day also signed an agreement to sell the Forrest Hill property for $670,000.

[4] The sale of the Forrest Hill property settled on 24 January 2014. After all expenses were paid, the proceeds came to $646,507.28 which was paid into a Westpac account held jointly by Ivy, Fred and Stephen. On Ivy’s death, the funds left in the Westpac account were $168,464.05. Some of the funds in the account were used for rest home fees - $59,853.09. There was $586,704.19 for the funds paid into the Westpac account which is not accounted for. Stephen withdrew funds from the account.

[5] Ivy and Fred also had accounts at the ANZ Bank. Stephen used Ivy’s enduring power of attorney to draw funds from those accounts. Up to her death, he drew $338,480.92. The total funds Stephen took using the enduring power of attorney come to $756,721.06.

[6] On 15 January 2014, Ivy signed a new will. She appointed Fred her executor but, if he predeceased her, she appointed Stephen…

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 Jackson v Jackson

Details

AGLC: Jackson v Jackson [2017] NZHC 860
Case: [2017] NZHC 860
Decision Date: 3 May 2017

CaseChat Overview and Summary

Jackson v Jackson is a case concerning the estate of Ivy Jackson, who passed away in 2015, and her husband Fred Jackson, who passed away in 2014. Ivy and Fred had three children: Raymond, the plaintiff, Stephen, the first defendant, and Andrea, who also passed away in 2015. Linda Jackson, the second defendant, is Stephen's wife. The case revolves around the dispute of the funds in Ivy and Fred's bank accounts and the sale of their Forrest Hill property. The legal issues at hand were whether Stephen, who was appointed as the attorney under Ivy's enduring power of attorney, misused the funds and whether the sale of the Forrest Hill property was at an undervalue.

The court found that Stephen did misuse the funds in the bank accounts for his personal benefit, breaching his fiduciary duties to Ivy. Additionally, the sale of the Forrest Hill property was also a breach of fiduciary duty as it was sold in haste and at an undervalue. The court held that Raymond, as the administrator of Ivy's estate, was entitled to recover the misused funds from Stephen and the funds taken by Stephen and Linda from the bank accounts after Ivy's death.

The court also ruled that the claims against Stephen and Linda as executors were valid, as they were not entitled to appropriate the estate funds for themselves until the conditions under sections 47 and 48 of the Administration Act 1969 had been satisfied. The court granted Raymond judgment against Stephen for $836,725.16 plus interest, and against Stephen and Linda for $258,255.75 plus interest. Raymond was also awarded costs against the first and second defendants for $15,876.00 inclusive of disbursements.

Orders