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IN THE COURT OF APPEAL OF NEW ZEALAND
CA97/2008 [2009] NZCA 329
BETWEENGLADWEN FRANCES MCINTYRE, HELEN JEANNETTE CAMPBELL AND BRIAN RICHARD SMYTHE BEING THE TRUSTEES OF THE GLADWEN FRANCES MCINTYRE FAMILY TRUST
Appellants
ANDNEMESIS DBK LTD A DULY INCORPORATED COMPANY AND ANTHONY GILBERT STALLARD AND WILLIAM ALEXANDER COOK BEING THE TRUSTEES AND EXECUTORS OF THE ESTATE OF ALEC HASTWELL
Respondents
Hearing:24 February 2009
Court:O'Regan, Robertson and Arnold JJ
Counsel:P S Davidson and J Fyfe for Appellants
G P Barkle for Respondents
Judgment:28 July 2009 at 2.30 pm
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellants must pay to the respondents costs for a standard appeal on a band A basis and usual disbursements.
REASONS OF THE COURT
(Given by O’Regan J)
Table of Contents
Para No
Introduction [1] Facts [3] Issues [16]
ISSUE 1: ECONOMIC DURESS
The test to be applied [19]
(A)WAS THERE A THREAT OR THE EXERTION OF ILLEGITIMATE
pressure? [26]
(b) Did that threat result in compulsion or coercion? [62] (c)Affirmation [92] ISSUE 2: THE BALANCING PAYMENT CALCULATION [101] Result [114] Costs [115]
Introduction
[1] The principal issue in this appeal is whether the appellants, the trustees of the Gladwen Frances McIntyre Family Trust (the trustees), were acting under duress when they agreed to important variations to agreements relating to a joint venture between them and Mr Hastwell, who is now deceased. In the High Court, Mallon J found they were not: McIntyre v NemesisDBK Ltd HC NSN CIV 2005-44-558 13 February 2008. The appellants appeal against that decision.
[2] Before turning to that issue and the subsidiary issue on appeal, we will set out the factual and legal background to the dispute.
Facts
[3] Mrs Gladwen McIntyre purchased a property in Richmond in 1970, and lived in a house on the property from then on. In 1991, Mr Alec Hastwell, an acquaintance of Mrs McIntyre, proposed that the two of them enter into a joint venture to subdivide and develop the property. Mrs McIntyre agreed in principle.
[4] In 1993 two formal agreements relating to the joint venture were finalised. Under the first agreement (the transfer agreement), Mrs McIntyre sold a half share in the property to Mr Hastwell’s adopted daughter, Ms Clark. Ms Clark’s interest was later transferred to Mr Hastwell and, for ease of reference, we will refer to the property as if it were owned by Mr Hastwell throughout. Under the transfer agreement, the property was valued at $245,000. But because Mrs McIntyre retained ownership of the house (valued at $45,000), the sum paid for the half share was $100,000. Mr Hastwell had the right to require Mrs McIntyre to buy his share of the land if it remained unsubdivided five years after the date of the agreement. Mrs McIntyre did not have a corresponding put option.
[5] The second agreement between Mrs McIntyre and Mr Hastwell provided the terms on which the joint venture was…
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.
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AGLC
McIntyre v Nemesis DBK Ltd [2009] NZCA 329
Case
[2009] NZCA 329
Decision Date
CaseChat Overview and Summary
McIntyre v Nemesis DBK Ltd is an appeal against a decision of the High Court that found the appellants, the trustees of the Gladwen Frances McIntyre Family Trust, were not acting under duress when they agreed to important variations to agreements relating to a joint venture between them and Mr Hastwell, who is now deceased. The principal issue in this appeal is whether the appellants were acting under duress when they agreed to Mr Hastwell's demands for increased remuneration. In the High Court, Mallon J found they were not. The appellants appeal against that decision. The Court found that although Mr Hastwell's conduct was reprehensible in many respects, it did not amount to, and was not construed by the trustees as, a threat to breach the contractual obligation to provide management services by simply stopping work. He was clearly disgruntled that the subdivision had gone badly and the amount of time involved in bringing it to fruition had exceeded both sides' expectations. He was concerned that the result was that the remuneration to which he was entitled under the contracts did not reflect the additional work that was required. This led him to express his sense of grievance in an extravagant and repetitive manner, with a view to persuading the trustees to agree to amend the contract to increase the remuneration. In doing so, he sought to bring matters to a head by indicating that he could not, or would not, continue as manager. The Court concluded that, viewed overall, Mr Hastwell's pursuit of a change in the basis of his remuneration, though forceful and repetitive, did not cross the line between forceful and illegitimate pressure. The appeal was dismissed.