Milne v Thompson - [2025] NZCA 375

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA699/2024
[2025] NZCA 375

BETWEEN	GRAHAM ALLAN MILNE, REX BRUCE SWENSEN, JENNIFER MARIE MILNE AND TONY ROY MILNE AS TRUSTEES OF THE GREAT CHELSEA GARDEN TRUST Appellants
AND	PHILIP CAMPBELL BROWNLEE THOMPSON AND PARIN RAFIEI THOMPSON Respondents

Hearing:	17 June 2025
Court:	Katz, Lang and Downs JJ
Counsel:	A R B Barker KC and C R Fu for Appellants R J Latton for Respondents
Judgment:	31 July 2025 at 9.00 am

JUDGMENT OF THE COURT

A The appeal is dismissed.
B The appellants must pay the respondents costs for a standard appeal on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by Downs J)

In the High Court, Johnstone J held an agreement between the appellants and respondents “was void from its inception and of no effect” as it contravened the Unit Titles Act 1972.[1] The appellants appeal that determination. They argue the agreement was not contrary to that Act, or if it was, it and a related agreement comprise an illegal contract warranting (discretionary) relief in their favour. The respondents contend the Judge decided the case correctly.

Background

[1]Thompson v Milne [2024] NZHC 2826 [judgment under appeal] at [55(a)].

No real dispute attaches to the facts.
The appellants are trustees of the Great Chelsea Garden Trust (the Trust), which was established in 2009. As its name implies, the Trust exists to acquire property or property rights near the Chelsea Estate Heritage Park and Rawene Reserve, and there, establish a garden of international significance. Central to this purpose was 4/45 Rawene Road (the property), which borders Rawene Reserve.
The property is one of four properties comprising 45 Rawene Road, and as with those properties, a unit title. The property has one home, and a large area of land behind the home of more than 5,000 m² (the land). The Trust’s interest lay in the land, not the home.
The property became available for sale, by auction, scheduled for 31 May 2010. On behalf of the Trust, Graham Milne bid at that auction. So too did the respondents, Philip and Parin Thompson. Unlike the Trust, the respondents were interested in buying the home, to facilitate their return to New Zealand.
The Trust offered the winning bid of $502,000. A 10 per cent deposit was due within 10 days, settlement within 90 days.
Mr Milne then contacted the respondents to see whether they were interested in buying the home for $485,000. They were. But the respondents wanted to buy the home only after the Trust had subdivided the property into two titles: one for the home (including, of course, its underlying land), and the other for the land.
On 27 April 2010, Mr Milne sent the respondents an email saying why that was not practicable from the Trust’s perspective. The email assured the respondents that the Trust would carry “all of the risks” in connection with the subdivision, with the…

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 Milne v Thompson

Details

AGLC: Milne v Thompson [2025] NZCA 375
Case: [2025] NZCA 375
Decision Date: 31 July 2025 at 9.00 am

CaseChat Overview and Summary

Milne v Thompson was an appeal from a decision of Johnstone J, who held an agreement between the appellants and respondents void from its inception and of no effect as it contravened the Unit Titles Act 1972. The appellants, trustees of the Great Chelsea Garden Trust, sought to acquire a property to establish a garden of international significance. The property was one of four properties comprising 45 Rawene Road, and as with those properties, a unit title. The property had one home, and a large area of land behind the home of more than 5,000 m2. The Trust's interest lay in the land, not the home. The property became available for sale, by auction, scheduled for 31 May 2010. On behalf of the Trust, Graham Milne bid at that auction. So too did the respondents, Philip and Parin Thompson. Unlike the Trust, the respondents were interested in buying the home, to facilitate their return to New Zealand. The Trust offered the winning bid of $502,000. A 10 per cent deposit was due within 10 days, settlement within 90 days. Mr Milne then contacted the respondents to see whether they were interested in buying the home for $485,000. They were. But the respondents wanted to buy the home only after the Trust had subdivided the property into two titles: one for the home (including, of course, its underlying land), and the other for the land. On 27 April 2010, Mr Milne sent the respondents an email saying why that was not practicable from the Trust’s perspective. The email assured the respondents that the Trust would carry “all of the risks” in connection with the subdivision, with the Trust’s “only protection … [being a] caveat” against the property. Consequently, the parties agreed the Trust would nominate the respondents as purchasers of the property in terms of the auction sale; the respondents would sell a subdivided portion of the property to the Trust for $17,000; and the appellants would pay that sum, in advance of the subdivision, to the respondents. The parties have differing recollections of some terms, but nothing turns on this as two written agreements were entered, and it is common ground these prevail. The Nomination Agreement was entered or on about 21 May 2010, the Partial Sale Agreement on or about 26 June 2010. The appeal was dismissed. The appellants must pay the respondents costs for a standard appeal on a band A basis together with usual disbursements.

Orders