IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-458
[2025] NZHC 2086
BETWEEN
RACHAEL KEIR and JOHN RICHARD KEIR Plaintiffs
AND
ROBERT SIMMS and LYNETTE JEAN SIMMS
Defendants
Hearing:
12–30 May 2025
Appearances:
N W Woods and L Newth for Plaintiffs
D R Bigio KC, D T D Horton, L R Hebden and S O H Coad for Defendants
Judgment:
29 July 2025
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 29 July 2025 at 2 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
Rice Craig, Auckland
Thomas Gibbons Law, Hamilton D R Bigio KC, Barrister, Auckland D T D Horton, Barrister, Auckland
KEIR v SIMMS [2025] NZHC 2086 [29 July 2025]
Table of Contents [Para]
Overview[1]
Structure[8]
Core facts[9]
Family relationships[9]
Home Dairy Farm and Lots 1–4[10]
Deed of Family Arrangement[12]
Subdivision consents[15]
Other key properties[19]
Chronological overview [20]
Early family background[20]
Early calf-rearing business[22]
Establishment of the Home Dairy Farm[24]
Rachael’s education and early employment[28]
Payments by Rachael[30]
Bruce’s education and early employment[31]
2003/2004: Napier onion reaction[32]
Funds to Bruce and Rebecca[35]
Kiwi Road Purchase[36]
ACC and return to the Home Dairy Farm[38]
2006 — Sherwood Drive to Coral Farms[39]
Residential moves during 2007/2008[41]
Bob’s heart attack in 2009[44]
ACC work hardening and Graduate Diploma[45]
Sherwood Drive eviction and grazing[46]
Negotiations for Lots 1–4[47]
2012 Understandings[50]
2012 medical event[51]
Settlement and lease of Lots 1–4[52]
2012 — Sherwood Drive sale[53]
Water bore[55]
Farm succession seminar[56]
Transfer of Lots 2 and 4[57]
Construction of Keir home[58]
Construction of underpass[61]
2014 medical event[62]
Transfer of Lots 1 and 3[63]
2016 Tripp Andrews Consent[64]
2017 Understandings[65]
Subdivision and succession negotiations[67]
2019 breakdown of relationships[68]
Legal principles [70]
Title to land, buildings and fixtures[70]
Formalities for interests in land[72]
Constructive and resulting trust exceptions[75]
Legal principles for CICT[79]
Legal principles for RECT[85]
Contentious matters [96]
Wills and fairness policy[96]
Rachael’s health[102]
Motivations for acquisition of Lots 1–4[109]
Interwoven land holdings[119]
Farm operations and contributions[124]
Farm not for sale[149]
Construction of Keir home[152]
Succession planning and subdivision negotiations[168]
CICT Analysis[188]
Common intention of beneficial ownership?[188]
Qualifying contributions in reasonable reliance?[194]
Unconscionability?[213]
Conclusions[215]
RECT Analysis[216]
Qualifying contributions?[216]
Expectation of interest in property?[217]
Reasonableness from plaintiffs’ perspective?[220]
Reasonableness from defendants’ perspective?[222]
Conclusions[225]
Estoppel[226]
Legal principles – unjust enrichment[226]
Legal principles – estoppel[230]
Analysis — Expectation Limb[239]
Analysis — Detrimental Reliance Limb[243]
Analysis — Unconscionability[245]
Conclusions[247]
Affirmative defence — orders for possession [248]
Caveats — orders for removal[257]
Counterclaim — Deed of Acknowledgement of Debt[259]
Result[270]
Overview
[1] The plaintiffs are Rachael Keir and her husband, John Keir (the Keirs). They bring a claim against Robert (Bob) Simms and Lynette Simms (the Simms), who are Rachael’s parents and John’s parents-in-law.1 The claim is brought in respect of a farm situated in Glenbrook, Auckland.
[2] The plaintiffs seek an order that they are entitled to a 61.6 per cent proprietary interest in farmland that is legally owned…
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.
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AGLC
Keir v Simms [2025] NZHC 2086
Case
[2025] NZHC 2086
Decision Date
CaseChat Overview and Summary
In the case of Keir v Simms, Rachael and John Keir brought a claim against their parents, Bob and Lynette Simms, seeking an order that they are entitled to a 61.6% proprietary interest in the farmland legally owned by Bob and Lynette. The plaintiffs also sought orders requiring part of that land to be subdivided and vested in them exclusively, under the terms of an existing subdivision consent, so that the house they built on the farm and now live in has its own separate title. In the alternative to those two remedies, they sought judgment in an amount that would provide equivalent relief, plus interest and costs.
The plaintiffs pleaded three causes of action: common intention constructive trust, reasonable expectation constructive trust, and estoppel. The same factual allegations were relied on for all three causes of action, centred on two alleged understandings: an alleged understanding reached on or before January 2012 about various land sales and acquisitions within the family that would lead to the farm expanding, the plaintiffs building their home next to their parents’ house, land around that house being subdivided and sold to them, and the entire farm eventually being handed over to Rachael and John to the exclusion of her brother, Bruce Simms; and an alleged understanding reached in a meeting on 29 July 2017 about succession of the farming operation, including that John would leave his current job and contribute 20 hours of labour per week to the farm, in anticipation of a full handover.
The defendants denied any basis for the plaintiffs’ claims. They said they have consistently and openly adopted a policy of treating both of their children fairly and equally. At all material times prior to the commencement of this proceeding, this had been reflected in the provisions of their respective wills which provided for their residual assets to be split equally between their two children. They said they had never represented or agreed to any departure from this policy. They denied any representations or conduct that could reasonably result in the alleged 2012 and 2017 understandings. Up until the commencement of the proceeding and beyond, they had continued to enjoy working on the farm and had employed farm managers and others to assist. They had no plans to retire at the time of the alleged understandings in 2012 and 2017, and still actively worked on the farm today despite their advancing years.
In any event, express contractual negotiations between the parties around those times demonstrated that the plaintiffs did not believe they had any existing enforceable rights. Rather, the parties were seeking agreement on various key terms of any land transactions or succession plans, with the intention that those agreements would be formalised. As such, the discussions were mere negotiations or attempts to reach agreement. This did not give rise to any enforceable legal rights.
The defendants said there was growing frustration on Rachael’s part about her parents not finalising any succession plan, culminating in increasing pressure and then this current proceeding commenced in 2022. This had resulted in irreparable harm to family relations.
The Court found that the plaintiffs had failed to establish any of their claims. The Court was not satisfied that the plaintiffs had suffered detrimental reliance by acting on any enforceable representations. Rather, there had been benefits provided in both directions in the context of family arrangements, and a decision by the Keirs to take the risk of building on the Home Dairy Farm knowing that the parties had failed to agree on terms to address the problem that the Keirs did not own that land.
The Court made an order that Caveat No. 11974754.1 on the property at 256 Glenbrook Beach Road, being all that parcel of land contained in Lot 2 on Deposited Plan 327986, Identifier 113794 (North Auckland Registry) is removed. The Court also made an order requiring the plaintiffs to give up possession and vacate the property at 256–278 Glenbrook Beach Road, RD 1, Waiuku, being all that land contained and described in the identifier Lot 2 DP 327986, to take effect two months from the date of the judgment. Lastly, the Court made an order requiring the plaintiffs to pay the defendants the sum of $300,000 (plus GST if any), together with interest accruing at the penalty rate of six per cent per annum from 17 March 2018 until the date of repayment.