Mackintosh v Thomas - [2015] NZHC 823

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-000754 [2015] NZHC 823

BETWEEN
J B MACKINTOSH AND M C HALL

First Plaintiffs and Counterclaim
Defendants

AND

M W REED Second Plaintiff

AND

S T REED Third Plaintiff

AND

P D THOMAS
First Defendant and Counterclaimant

AND

E M MARR Second Defendant

AND

A M SYME Third Defendant

Hearing: 15 April 2015

Appearances:

G M Brodie for First Plaintiffs and Counterclaim Defendants JWA Johnson and H Shaw for Second and Third Plaintiffs NRW Davidson QC and S Mann for First Defendant and Counterclaimant

K Clay for Second Defendant
No appearance for Third Defendant
S H Marsden for Thomas Grandchildren

Judgment:

23 April 2015

JUDGMENT OF DUNNINGHAM J

[1] When Norman Dean Thomas (Norman) died, he did not leave his affairs in order. Two years before his death, he fell out with his son, Philip Dean Thomas (Philip) with whom he had been farming in partnership for 35 years. In April 2012,
Norman initiated proceedings seeking a declaration that the partnership between him

MACKINTOSH AND HALL v REED AND ORS [2015] NZHC 823 [23 April 2015]

and Philip was dissolved as well as orders dividing the partnership assets. Shortly afterwards, Norman died and Philip counterclaimed asserting that Norman’s interest in the partnership property should be transferred to him.1

[2] To further complicate matters, two years before Norman’s death, he allowed two of his grandsons, Mark Reed (Mark) and Simon Reed (Simon),2 to take occupation of certain properties which had been partnership properties. Simon has been in occupation of two farms, known as Chesmars and Cridges, since 2010. Mark has been in occupation of two other farms, known as Yaldhurst and Halkett, since 2010. They, in turn, have lodged claims asserting that, either on the basis of promissory estoppel or under the Law Reform (Testamentary Promises) Act 1949, Simon is entitled to ownership of the Chesmars farm and to ownership of Norman’s
half share of the Cridges farm and a 10 year lease of the farm plus an option to purchase the other half share, and Mark is entitled to a 10 year lease of the Halkett farm plus ownership of an area of the Yaldhurst farm. They also claim to be entitled to ownership of various farm machinery which Norman allowed them to use on those farm properties.

[3] The two streams of litigation have been consolidated, and other family members have joined, with the other grandchildren making claims under the Family Protection Act 1955. With an estate worth approximately $20 million, a lack of accurate record keeping as to what assets were held by which particular entity, and some preliminary issues to dispose of such as replacing the trustees, it took some time for the case to be ready for hearing. However, a hearing was eventually scheduled for 27 May 2014. That hearing was vacated because, on 28 May 2014, the parties advised the Court they had reached an agreement in principle to settle the various claims.

[4] Regrettably, over…

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 [2015] NZHC 823
Case: [2015] NZHC 823
Decision Date: 23 April 2015

CaseChat Overview and Summary

The case of Mackintosh v Thomas was heard in the High Court of New Zealand. The case involves a complex web of family disputes following the death of Norman Dean Thomas. The case was consolidated, and other family members joined, with the other grandchildren making claims under the Family Protection Act 1955. The parties have reached an agreement in principle to settle the various claims, but that agreement has since foundered, and the parties have reverted to the Court to have their claims determined. The applicants sought an interim injunction to remain in possession of the properties they occupied and to restrain Philip from entering those properties pending further order of the Court. The applicants argued that they had a legitimate claim to remain in possession, and the balance of convenience favoured leaving them there until their claim was resolved. The trustees argued that if the applicants were to remain in occupation, they should pay a fair rental to the estate and to Philip. The Court found that there was a serious question to be tried, and the balance of convenience favoured the applicants remaining in possession, but they must pay rent. The Court granted the interim injunction on terms that the applicants must pay rent and all future outgoings on the property, including rates and insurance. If the applicants are not prepared to pay rental, then they must vacate the properties by 30 June 2015. The Court also granted possession of all machinery in the applicants' possession, pending further order of the Court. The Court restrained Philip from entering the properties pending further order of the Court while the applicants continue to occupy those farms. The Court recognised Philip's right to possession of the land in the interim by accounting to him for rental of his interest in the properties. The Court reserved the issue of costs and was inclined to let costs lie where they fall.

Orders