Marr v Parkin - [2014] NZHC 3269

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-5102 [2014] NZHC 3269

UNDER the Declaratory Judgments Act 1908

BETWEEN

BERNADETTE MAKUINI MARR First Plaintiff

KEITH CHARLES BLUETT MARR and

CHARLOTTE RUBY MARR Second Plaintiffs

AND

BARRY IAN PARKIN Defendant

Hearing: 3 to 6 November 2014

Counsel:

EJ Werry for plaintiffs
KT Glover for defendant

Judgment:

17 December 2014

JUDGMENT OF FAIRE J

This judgment was delivered by me on 17 December 2014 at 12-noon pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Atmore Lawyers, Auckland (G Atmore) Graham Jones Law, Auckland (G Jones)

Marr v Parkin [2014] NZHC 3269 [17 December 2014]

Table of Contents

Introduction ............................................................................................................[1] The facts and my findings ......................................................................................[4] The causes of action .............................................................................................[41]
(a) Knowing receipt [44] (b) Competing equitable interests [45] (c) Breach of the Credit Contracts and Consumer Finance Act 2003 [46] (d) Credit Contracts and Consumer Finance Act 2003 (reopening of credit
contract) [47]

Knowing receipt ...................................................................................................[49] Elements of knowing receipt [56] Discussion [57]
Competing equitable interests ..............................................................................[70] Breach of the Credit Contracts and Consumer Finance Act 2003 (CCCFA) .......[72]
Submissions [73] Disclosure cause of action [78] Reopening cause of action [84]

Result....................................................................................................................[86] Costs .....................................................................................................................[87]

Introduction

[1] This proceeding was brought to determine who is ultimately entitled to ownership of a residential property at 1/27 Birdwood Crescent, Auckland (“the house”). The house has been the home of the Marr family since 2007. The second plaintiffs are the children of the first plaintiff.

[2] The beneficial interest in the house had been acquired by Ms Guttenbeil pursuant to a contract she entered into with the mortgagee of the house. Ms Guttenbeil did not formally settle her contract with the mortgagee of the house. What she did was nominate the defendant who settled that transaction. That settlement has not been able to be brought to completion because of a caveat which was lodged against the title to the property by the second plaintiffs.

[3] The caveat claimed an estate or interest as follows:

Pursuant to an unconditional agreement for sale and purchase dated 2 August
2013 between Keith Charles Bluett Marr and Charlotte Ruby Marr as purchasers and Merrill Jane Guttenbeil as vendor, Merrill Jane Guttenbeil being purchaser under an unconditional agreement for sale and purchase dated 18 July 2013 under a power of sale exercised by Link Loan Trustees Limited as mortgagee under Memorandum of Mortgage 7667128.3.

The facts and my findings

[4] Ms Marr’s son, Damian Marr, and a family friend, David Askew, purchased the property at 1/27 Birdwood Crescent in December 2007, on behalf of Ms Marr. The house was acquired with assistance provided by Link Loan Trustees Ltd (“the mortgagee”). In November 2012, Ms Marr fell behind on her mortgage payments. On 26 February 2013, the mortgagee served on Damian Marr a notice of default under the mortgage seeking $13,995.25 plus costs of $950 for a total of $14,945.25. The default was required to be remedied by 5 April 2013. The Marr interests were…

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 [2014] NZHC 3269
Case: [2014] NZHC 3269
Decision Date: 17 December 2014

CaseChat Overview and Summary

In the case of Marr v Parkin, the court was required to determine the rightful owner of a residential property at 1/27 Birdwood Crescent, Auckland. The dispute arose from a series of complex financial transactions and agreements involving the Marr family, Ms Guttenbeil, and Mr Parkin. The primary legal issues were whether Mr Parkin had received the property in breach of a fiduciary duty, whether there were competing equitable interests, and whether there was a breach of the Credit Contracts and Consumer Finance Act 2003. The court found that Ms Guttenbeil was not acting in breach of a fiduciary duty when she nominated Mr Parkin. The nomination was within the scope of the agreement between Ms Guttenbeil and Ms Marr, and Mr Parkin did not receive the nomination with knowledge that it was given to him in breach of a fiduciary duty. Additionally, the court found that the Marr family did not have an equitable interest in the property prior to Mr Parkin. Consequently, the claims of knowing receipt, competing equitable interests, and breaches of the Credit Contracts and Consumer Finance Act 2003 were dismissed. Judgment was entered in favour of the defendant, Mr Parkin.

Orders