Mackintosh v Thomas - [2020] NZHC 1404

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-171

[2020] NZHC 1404

BETWEEN JOHN BOWDEN MACKINTOSH and MATTHEW CHADLOW HALL
Plaintiffs

AND

PHILIP DEAN THOMAS

First Defendant

ALISON MARGARET SYME
Second Defendant

SIMON THOMAS REED and MARK WREFORD REED

Third and Fourth Defendants

ELEANOR MARY MARR

Fifth Defendant

On the papers:

Counsel:

C A McVeigh QC, G M Brodie and R Cooper for Plaintiffs H A Evans D R Weatherley for First Defendant

R J B Fowler QC and B R D Burke for Second Defendant J Johnson for Third and Fourth Defendants

K W Clay for Fifth Defendant

Judgment:

22 June 2020

JUDMENT (NO. 2) OF CHURCHMAN J

Background

[1] In its decision in this matter dated 30 April 2020,1 the Court at [443] reserved leave to any party to the litigation, to apply to the Court. The decision was specific on

1 Mackintosh & Anor v Thomas [2020] NZHC 860.

MACKINTOSH & ANOR v THOMAS & ORS [2020] NZHC 1404 [22 June 2020]

the basis as to which leave application needed to be founded. This was where the Court had “omitted to address any issue believing it to have been already settled when that was not the case, and the parties still require a declaration”.

[2] By memorandum of counsel dated 14 May 2020, counsel for Alison Syme (Alison) sought declarations on two separate topics.

[3] By memorandum dated 21 May 2020, counsel for Philip Thomas (Philip) opposed the granting of leave. The opposition was on two grounds:

(a)that the application fell outside the terms of the reservation of leave because the matters involved were not overlooked or omitted by the Court but were matters that were not before the Court at all; and

(b)that the matters related to specific agreements that had been entered into between the trustees and Philip Thomas and that there was no jurisdiction under the Trustee Act to amend the words of such a commercial bargain.

[4] The memorandum also noted that a consequence of the declarations sought by Alison would be that Philip will be required to effectively pay interest twice.

[5] None of the other parties to these proceedings have filed a memorandum in relation to Alison’s application.

The declarations

[6] The decision of 30 April 2020 at [336], required those respondents in occupation of estate properties to pay rental for them from 31 March 2016, and similar rental to the Partnership where the property in question was owned by the Partnership rather than the estate. At [400] of the decision the parties were required to pay interest at a rate of six per cent per annum on late rental payments.

[7] On 21 June 2019, the trustees and Philip had entered into a sale and purchase agreement in relation to three titles to the Steeles property. The agreement also

involved the trustees’ lending approximately half the purchase price to Philip to be secured by a first mortgage.

[8] As 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 Mackintosh v Thomas

Details

AGLC: Mackintosh v Thomas [2020] NZHC 1404
Case: [2020] NZHC 1404
Decision Date: 22 June 2020

CaseChat Overview and Summary

The plaintiffs in this case, John Bowden Mackintosh and Matthew Chadlow Hall, sought declarations from the High Court of New Zealand regarding certain aspects of the management of estate properties. The defendants included Philip Dean Thomas, Alison Margaret Syme, Simon Thomas Reed, Mark Wreford Reed, and Eleanor Mary Marr. The plaintiffs sought clarification on whether the trustees were obliged to charge interest on a sum of $1,625,000 and whether Alison Syme could provide a registered first mortgage over either Halkett or Pitts Road as security for her indemnities. The defendants opposed these applications, arguing that the issues had not been omitted by the court and that the court lacked jurisdiction to alter the terms of the commercial agreements between the parties.

The court examined whether the matters at hand fell within the scope of the reservation of leave, which allowed for applications to address issues the court had omitted to address. The court found that the issues raised by Alison Syme were not overlooked or omitted by the court but rather had not been raised by any party during the proceedings. Additionally, the court held that it had no jurisdiction to alter the terms of the commercial agreements between the trustees and Philip Thomas, as these agreements were negotiated and agreed upon by both parties.

The court concluded that the applications made by Alison Syme were not within the scope of the reservation of leave and dismissed them. The court also noted that if Alison had a particular proposal involving Pitts Road as an alternative to Halkett, she could present it to the trustees for their consideration. The court's decision was based on the fact that the issues raised by Alison Syme were not omitted or misunderstood by the court, and the court had no jurisdiction to alter the negotiated terms of the commercial agreements between the parties.

Orders