Marr v Parkin - [2015] NZCA 371

IN THE COURT OF APPEAL OF NEW ZEALAND

CA51/2015
[2015] NZCA 371

BETWEEN	BERNADETTE MAKUINI MARR Appellant
AND	BARRY IAN PARKIN Respondent

Hearing:	28 July 2015
Court:	Randerson, Heath and Collins JJ
Counsel:	E J L Werry for Appellant K T Glover and H E McQueen for Respondent
Judgment:	13 August 2015 at 11:30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the respondent’s costs for a standard appeal on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

The appellant, Ms Marr appeals a decision of Faire J in which he concluded Ms Marr had no claim in equity to a house at 1/27 Birdwood Crescent, Parnell (the property).[1] The property had been Ms Marr’s family home but was purchased by the respondent, Mr Parkin following a mortgagee sale.
[1]Marr v Parkin [2014] NZHC 3269.
Faire J rejected Ms Marr’s claim that Mr Parkin received the property knowing it was subject to a constructive trust or that Ms Marr’s agent, Ms Guttenbeil, had breached her fiduciary duty to Ms Marr when she assigned to Mr Parkin the right to purchase the property.
Faire J also rejected Ms Marr’s claim Mr Parkin had breached the Credit Contracts and Consumer Finance Act 2003 (the Act) when he lent Ms Guttenbeil the deposit to purchase the property. Faire J concluded there was in fact no loan agreement between Ms Marr and Mr Parkin.
The two issues we have had to consider are:
(1)Whether Mr Parkin was liable to Ms Marr for knowingly receiving the property subject to a constructive trust in favour of Ms Marr. In the circumstances of this case, this issue is answered in favour of Mr Parkin if Ms Guttenbeil no longer owed any fiduciary duty to Ms Marr at the time Ms Guttenbeil assigned to Mr Parkin the right to purchase the property.
(2)Whether there was a consumer credit contract as defined in the Act between Ms Marr and Mr Parkin.
To assist in understanding our judgment we shall set out the facts, briefly explain the judgment of Faire J, explain the law, apply the law to the facts under the heading of “analysis” and set out our conclusions.

Facts

In December 2007 the property was purchased on behalf of Ms Marr, a real estate salesperson and registered in the name of members of Ms Marr’s family. A mortgage was obtained from Linkloan Trustees Ltd (Linkloan). Ms Marr was responsible for making the mortgage repayments. By November 2012, Ms Marr had fallen into arrears in repaying the mortgage.
In February 2013, Linkloan issued a notice under the Property Law Act 2007 requiring Ms Marr to repay $14,945.25 by 5 April 2013. When the amount required by Linkloan was not repaid it commenced the procedures required for a mortgagee sale, which was scheduled for 17 July 2013.
Ms Marr approached mortgage brokers, including a Mr Barton, in an effort to refinance the mortgage.…

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 Marr v Parkin

Details

AGLC: Marr v Parkin [2015] NZCA 371
Case: [2015] NZCA 371
Decision Date: 13 August 2015 at 11:30 am

CaseChat Overview and Summary

In the case of Marr v Parkin, Ms Bernadette Marr appealed a decision of the High Court in which it was held that she had no claim in equity to a property located at 1/27 Birdwood Crescent, Parnell. The property had been Ms Marr's family home but was eventually purchased by Mr Barry Parkin following a mortgagee sale. The appeal was dismissed by the Court of Appeal, which found that Mr Parkin was not liable for knowingly receiving the property subject to a constructive trust in favour of Ms Marr, and that there was no consumer credit contract between Ms Marr and Mr Parkin as defined in the Credit Contracts and Consumer Finance Act 2003.

The primary legal issues that the Court of Appeal was required to decide were whether Mr Parkin was liable for knowingly receiving the property subject to a constructive trust in favour of Ms Marr, and whether there was a consumer credit contract between Ms Marr and Mr Parkin. The Court of Appeal found that Ms Marr's agent, Ms Guttenbeil, had ceased to owe any fiduciary duty to Ms Marr by 15 August 2013, which meant that Mr Parkin could not be liable for knowingly receiving the property. The Court of Appeal also found that there was no consumer credit contract between Ms Marr and Mr Parkin, as the deposit paid by Mr Parkin was intended to satisfy Ms Guttenbeil's obligation under the agreement for sale and purchase.

The Court of Appeal's reasoning was based on an analysis of the nature and scope of the agency agreement between Ms Marr and Ms Guttenbeil, which formed the foundation of any fiduciary duties Ms Guttenbeil owed Ms Marr. The agency agreement between Ms Marr and Ms Guttenbeil remained in force for as long as it was feasible that Ms Marr would raise the funds required to settle the purchase of the property. However, by 15 August 2013, it was abundantly clear that Ms Marr was not going to be able to arrange the funds to settle the purchase, which meant that Ms Guttenbeil ceased to be Ms Marr's agent and no longer owed any fiduciary duties to Ms Marr. As a result, Mr Parkin could never be liable on the basis of knowing receipt.

The Court of Appeal also found that any credit contract in this case was between Mr Parkin and Ms Guttenbeil, as it was Ms Guttenbeil who entered into the contract to purchase the property from the mortgagee. Mr Parkin agreed to pay the $25,000 deposit directly to the real estate agent acting for the mortgagee as vendor, which was made to satisfy Ms Guttenbeil's obligation under the agreement for sale and purchase. There was no evidence that Ms Marr assumed responsibility to repay the deposit, which was solely Ms Guttenbeil's responsibility.

The final orders of the Court of Appeal were that the appeal was dismissed, and that Ms Marr must pay Mr Parkin's costs for a standard appeal on a band A basis together with usual disbursements.

Orders