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Mills v Laboyrie

Mills v Laboyrie

Case [2021] NZCA 450 8 September 2021

Common Intention Constructive Trust

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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 Appellant
AND	PAULINE CLARE LABOYRIE, WAYNE FRANCIS MILLS AND MARY DIANNE GEMMELL AS TRUSTEES OF THE GALWAY TRUST Respondents

CA420/2020
BETWEEN	PAULINE CLARE LABOYRIE Appellant WAYNE FRANCIS MILLS Second Appellant MARY DIANNE GEMMELL Third Appellant
AND	TERENCE PATRICK MILLS Respondent

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 S W B Foote QC and K B Arthur for Respondents in CA231/2020 and Appellants in CA420/2020
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…

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 Mills v Laboyrie

Details

AGLC: Mills v Laboyrie [2021] NZCA 450
Case: [2021] NZCA 450
Decision Date: 8 September 2021

CaseChat Overview and Summary

The appeal in the case of Mills v Laboyrie, brought by Terence Patrick Mills (Terry), against Pauline Clare Laboyrie, Wayne Francis Mills, and Mary Dianne Gemmell as trustees of the Galway Trust (the respondents), has been dismissed by the Court of Appeal. The respondents, in their personal capacities, also brought an appeal, which was dismissed in light of the outcome of Terry's appeal. The substantive judgment of the High Court, which ruled that Terry held the property on trust for the respondents and ordered its transfer, was upheld. The alternative claim by the respondents for individual shares in the property was dismissed. The Court of Appeal rejected Terry's appeal on the grounds that the Judge did not err in finding that the respondents made contributions and that the original common intention of the trustees was unchanged. The Court found no error in the Judge's approach to the common intention constructive trust (CICT) and Pallant v Morgan equity causes of action. The appeal against the costs judgment was also dismissed, with Terry being held personally liable for the costs and disbursements.

Orders