Johnston v Mapp - [2013] NZHC 2858

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-259 [2013] NZHC 2858

IN THE MATTER OF the Estate of Philip Roland Gordon

IN THE MATTER OF the Administration Act 1969

BETWEEN GLYNIS ROSE JOHNSTON Plaintiff

ANDVANESSA LOUISE MAPP Defendant

Hearing: 26-27 June 2013

Counsel: S Gaines for the Plaintiff
No appearance for the Defendant

Judgment: 30 October 2013

JUDGMENT OF MALLON J

Table of Contents

Introduction ....................................................................................................................................... [1] Procedural matters............................................................................................................................ [6] Issue 1: De facto relationship? ......................................................................................................... [9] The law ........................................................................................................................................... [9] The facts ....................................................................................................................................... [13] The contested evidence ................................................................................................................. [19] Submissions for Mrs Johnston ...................................................................................................... [30]
My assessment .............................................................................................................................. [32] Estate ............................................................................................................................................ [35] Issue 2: A gift? ................................................................................................................................. [36] The facts ....................................................................................................................................... [37] Alleged gift ................................................................................................................................... [55] Submissions for Mrs Johnston ...................................................................................................... [59]
My assessment .............................................................................................................................. [61] Issue 3: personal guarantees?......................................................................................................... [62] The evidence ................................................................................................................................. [63] Submissions for Mrs Johnston ...................................................................................................... [66]

My assessment .............................................................................................................................. [67]

Declarations and orders? ................................................................................................................ [68] Result ................................................................................................................................................ [74]

JOHNSTON v MAPP [2013] NZHC 2858 [30 October 2013]

Introduction

[1] Philip Roland Gordon, a United Kingdom citizen, died in England on 11 May

2010. He died intestate. His parents predeceased him, he did not marry and he had no children. He is survived by four siblings, including Glynis Johnston (the plaintiff) who is the eldest child in the family. Vanessa Mapp (the defendant) claims that she was the de facto partner of Mr Gordon at the time of his death. It is that claim, which is disputed by Mrs Johnston, and Ms Mapp’s actions taken on the basis of that claim, which has led to this proceeding.

[2] The background to this proceeding concerns money advanced by Mr Gordon from 2007 to 2009which was invested in a property development in New Zealand in which Ms Mapp was involved.1 In total Mr Gordon provided funds of
$1,078,740.37. However the property development was not successful and at the time of Mr Gordon’s death there remained $695,734.82 of these funds. That money has now gone as a result of actions taken by Ms Mapp after Mr Gordon’s death. Those actions were taken by Ms Mapp as administrator of Mr Gordon’s estate.

[3] Ms Mapp was granted the letters of administration for Mr Gordon’s New Zealand estate on 5 November 2010 on the basis that she was his de facto partner. In her application for that grant she did not mention that Mr Gordon had siblings. On behalf of the surviving siblings of Mr Gordon, Mrs Johnston applied for the recall of that grant of administration on the basis that Ms Mapp was not Mr Gordon’s de facto partner. By consent, that grant was revoked and replaced with a grant to Mrs
Johnston on 27 March 2013.2

[4] Mrs Johnston now seeks declarations and related orders in respect of Mr Gordon’s estate. She claims that Ms Mapp has no lawful entitlement to Mr Gordon’s estate, Mr Gordon’s siblings are entitled to his estate, and Ms Mapp and other parties through whom the money passed hold 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 Johnston v Mapp

Details

AGLC: Johnston v Mapp [2013] NZHC 2858
Case: [2013] NZHC 2858
Decision Date: 30 October 2013

CaseChat Overview and Summary

The case of Johnston v Mapp involved a dispute over the estate of Philip Roland Gordon, who died intestate in England in 2010. The plaintiff, Glynis Johnston, as the eldest sibling of Mr Gordon, sought declarations and orders in respect of Mr Gordon's estate. The defendant, Vanessa Louise Mapp, claimed to be Mr Gordon's de facto partner at the time of his death and had been granted letters of administration for Mr Gordon's New Zealand estate. The key issues in the case were whether Ms Mapp was in a de facto relationship with Mr Gordon at the time of his death, whether Mr Gordon provided the money as an advance or a gift, whether Mr Gordon personally guaranteed to repay investments made by others in the property development, and whether associates of Ms Mapp or companies in which she was involved knowingly received the estate funds or dishonestly assisted Ms Mapp in her disposal of the funds.

The court found that Ms Mapp was not in a de facto relationship with Mr Gordon at the time of his death. The evidence showed that they had a mutually affectionate personal and sexual relationship that came to an end, either with Mr Gordon's return to England or certainly by 2008. Thereafter their continued contact was as friends with ongoing business interests. The court also found that the money provided by Mr Gordon to Ms Mapp was in the nature of an advance, not a gift, as there was insufficient evidence to establish that it was a gift. Furthermore, the court held that the evidence did not establish personal guarantees by Mr Gordon for the loans made by Ms Mapp's parents and Mr Buckingham.

The court made declarations and orders against Ms Mapp and other parties who received the estate funds in breach of the statutory trust in favour of the siblings. Ms Mapp was liable to pay the sum of $695,734.82 to Mrs Johnston, Aquila Real Limited was liable to pay $83,000, Brougham Street Trustee Company Limited was liable to pay $400,000, Wellington Luxury Limited was liable to pay $695,734.82, and Twig Luxury Trustee Company Limited was liable to pay $80,000. Interest at the rate of three per cent was also payable on these sums.

Orders