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| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA231/2020 [2021] NZCA 450 |
| BETWEEN | TERENCE PATRICK MILLS |
| AND | PAULINE CLARE LABOYRIE, WAYNE FRANCIS MILLS AND MARY DIANNE GEMMELL AS TRUSTEES OF THE GALWAY TRUST |
| CA420/2020 | ||
| BETWEEN | PAULINE CLARE LABOYRIE | |
| AND | TERENCE PATRICK MILLS | |
| Hearing: | 16 June 2021 |
Court: | Brown, Brewer and Davison JJ |
Counsel: | M D Branch and K F Shore for Appellant in CA231/2020 and Respondent in CA240/2020 |
Judgment: | 8 September 2021 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal in CA231/2020 is dismissed. Accordingly the appeal in CA420/2020 is also dismissed.
BThe appellant in CA231/2020 must pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.
CThe appellant is personally liable for the award of costs and disbursements.
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Table of Contents
Para No
Introduction [1]
Factual context [4]
The High Court judgment [17]
Issues on appeal [21]
Did the Judge err in finding that the respondents made
contributions? [24]
Did the Judge err in finding that the original common intention was
unchanged? [30]
Conclusion on factual challenges [46]
Did the Judge err in her approach to the CICT and Pallant v
Morgan equity causes of action? [48]
Is the CICT a separate type of institutional constructive trust? [49]
Can a CICT be established without contribution? [55]
The Pallant v Morgan equity [56]
Did the Judge err in rejecting Terry’s counterclaims? [64]
Unjust enrichment [64]
Trustee indemnity [69]
Debt [72]
The costs appeal [78]
Personal liability of Terry [79]
The costs uplift to reflect the third Calderbank offer [85]
High Court Rules, r 7.77(8) [89]
Disallowing a reduction for the respondents’ cross claim [94]
Conclusion [97]
The appeal in CA420/2020 [98]
Result [99]
REASONS OF THE COURT
(Given by Brown J)
Introduction
Four siblings, Pauline, Wayne, Mary[1] and Stephen, settled the Galway Trust (the Trust) to acquire and own their late mother’s Hamilton home (the Property). The objectives of the Trust were to provide secure accommodation for Stephen for his lifetime and ultimately to afford benefits to the siblings’ children and grandchildren. However, unbeknown to the respondents, the Property was registered solely in Stephen’s name. On his death in 2017 the Property was left to the appellant in CA231/2020 (Terry) who was another brother and the executor of Stephen’s estate. Terry maintained that Stephen was both the legal and beneficial owner of the Property which Terry duly inherited.
[1]We will refer to Pauline, Wayne and Mary as the respondents even though they are also appellants in CA420/2020.
In proceedings brought by the respondents Edwards J ruled that Terry held the Property on trust for the respondents, in their capacities as trustees of the Trust, and…
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- AGLC
- Mills v Laboyrie [2021] NZCA 450
- Case
- [2021] NZCA 450
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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