McCauley v NZ Guardian Trust Company Ltd HC Hamilton CP18/01

[2001] NZHC 299

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY CP18/01

BETWEEN: ROBYN FRANCES McCAULEY
Plaintiff

AND: THE NZ GUARDIAN TRUST COMPANY LTD
First Defendant

AND: NOELINE FRANCES ANDERSON
Second Defendant

COUNSEL: A. Foster for Plaintiff
S.J. Chatwin for First Defendant
S.P. Williams for Second Defendant

JUDGMENT: 26 April 2001

ORAL JUDGMENT OF HAMMOND J

[1] I am sitting in Chambers, with counsel before me, to deal with an urgent oral application for the extension of a stay which was agreed by consent, pending the hearing of an application for an interlocutory injunction.

[2] The broad background is that the subject matter of this dispute is an extensive farming estate, the New Zealand Guardian Trust Company Limited is the trustee of that estate. The second defendant, Mrs Anderson, is the mother of the plaintiff, Ms McCauley.

[3] Mr Foster’s interests commenced proceedings alleging a certain oral agreement with respect to the estate. Normally, the fact that that agreement is not in writing would be fatal. But here the doctrine of part performance is relied upon, and certainly there are acts which Mr Foster has pointed to which, in principle, would appear to be capable of amounting to part performance.

[4] The urgency which has arisen is that the trustee had put in train steps to send out to tender, leases for something like half of the subject estate. Those tenders close on 27 April, which is tomorrow. I understand from counsel, and this is supported by Ms Phillips’ affidavit which has been filed this morning, that tenders have been received but they have not yet been opened. Mr Chatwin’s impression is that there is more than one tender. Of course I cannot know at this stage what the amounts of those tenders are. I enquired of Mr Chatwin whether there is a reservation in the tender requiring the trustee to accept the highest tender. His understanding is that there is not.

[5] Mr Foster filed an ex parte application for an interim injunction on 18 April 2001. That was during the Easter vacation. It was sent to Auckland for inclusion in the Duty Judge list there. Counsel resolved the matter at that time by agreement, on the footing that the trustee would take no further steps until Friday 27 April 2001 in the tender for lease process, as the document was then expressed.

[6] The file was then returned to the Hamilton Registry with a direction that a fixture be allocated before that time expired. As it has transpired, due to pressure on the Court lists, a fixture has not been possible.

[7] I saw counsel in a Chambers List last week. The earliest fixture which could be allocated for a hearing of the interlocutory injunction was for 22 May 2001 at 10.00 am. I allocated that fixture. That left open the possibility that the parties might not be able to agree what should happen between 27 April and 22 May. I suggested to counsel that they discuss the position with their clients. I was hopeful that some arrangement might be able to be come to between them. I reserved leave for counsel to see me on short notice in Chambers if there was further difficulty.

[8] I have seen counsel at their request this morning. The trust company has not felt able to consent to an extension of time until 22 May. This is for the reason that the trustee company calculates that if it does not accept a suitable tender, there may be a substantial loss of income to the estate. The trustee then could itself be criticised, or worse, for what has occurred.

[9] On the other side of the line, as Mr Foster put it this morning, this is an “all or nothing” application for his client. If the property, or at least the property which is claimed, goes on long term lease, then the plaintiff will be left, as to the land which she owns, with what she claims to be not a viable farming unit.

[10] To complicate matters, Mr Williams was able to advise me this morning that there have been family discussions. He was able to make available to the other counsel this morning a document which has been signed by some family members which holds out some prospect that the substantive proceedings may be able to be resolved.

[11] I take into account also that this is a case in which, if ultimately Mr Foster’s client does not prevail, and if the matter does come to a substantive hearing, she is good for damages. Ms McCauley owns a substantial block of Waikato farming land now. And, she has given the usual undertaking. Although I am hopeful the matter will not come to that, it seems to me, therefore, that if the estate suffers loss through the steps which the plaintiff has now taken, there is a sound basis for saying that the estate could recover from Ms McCauley, on her undertaking. And certainly this is a case in which she has taken the steps she has, knowing all the various alternatives, and the fact that tenders were received.

[12] I have also said to counsel that I am encouraged by what I have heard this morning, that there may yet still be some prospect of this matter being resolved within the family. That is, of course, a major consideration in a matter of this kind.

[13] In all the circumstances, and treating this as an urgent application made orally for an extension of the stay agreed to by counsel, I order that the trustee company is to take no further steps (beyond opening the tenders) to lease the subject land in these proceedings until the delivery of a judgment by this Court in the proceeding which is before me on 22 May 2001.

[14] Costs will be reserved.

[15] I had handed to me this morning a Notice of Opposition from the trustee company and Ms Phillips’ affidavit. Those are to be placed on the file by the Registrar in the usual way.

Judgment accordingly.