Murray v Piggott - [2019] NZHC 2568

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002149

[2019] NZHC 2568

BETWEEN
HUGH LAWRENCE REECE MURRAY

Plaintiff

AND

JAYNE SUSAN PIGGOTT

Defendant

Hearing: 30 September 2019

Appearances:

D A Towle for Plaintiff

P J Kennelly for Defendant

Judgment:

9 October 2019

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

MURRAY v PIGGOTT [2019] NZHC 2568 [9 October 2019]

Introduction

[1] The plaintiff is the defendant’s father (the father). He sues the defendant daughter (the daughter) in respect of a payment he made to her of $151,079.78 in March 2016.

[2] The father contends that the payment created a resulting trust. He says there was an arrangement with the daughter whereby he would enjoy occupancy of his daughter’s home for an indeterminate period, in exchange for which his daughter would be entitled to use the money for various purposes, including repayment of the mortgage, outgoings and renovations to the property.

[3] The daughter says that the payment was expressed to be an “early inheritance” and it was therefore a gift.

[4] In the present proceeding, the daughter has made application for security for costs pursuant to r 5.45(1) of the High Court Rules 2016.

[5] The father accepts that the threshold test of impecuniosity has been established; the critical issue is whether the Court should exercise its discretion to make an order for the payment of security.

Relevant legal principles

[6] The general approach is well established. As held by the Court of Appeal in A S McLachan Ltd v MEL Network Ltd, whether or not to order security and, if so, the quantum, are at the discretion of the Court.1 In accordance with Busch v Zion Wildlife Gardens Ltd (in rec and in liq) it is necessary to address the following steps:2

(a)Has the applicant satisfied the Court of the threshold under r 5.45(1)?

(b)How should the Court exercise its discretion under r 5.45(2)?

1 A S McLachan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA).
2 Busch v Zion Wildlife Gardens Ltd (in rec and in liq) [2012] NZHC 17 at [2].

(c)What amounts should security for costs be fixed at?

(d)Should a stay be ordered until any order for security of costs is met?

[7] In exercising its discretion, the Court must balance two competing interests: the defendant’s interest in being protected from a barren costs order and the plaintiff’s right of access to the court.3 As part of this enquiry, as far as possible, the Court will endeavour to assess the merits and prospects of success of the claim.4

[8] If a plaintiff’s impecuniosity is caused by the defendant’s actions, then this is a factor that mitigates against the making of an order for security.5

Background facts

[9]The father is 81 years old and retired.

[10] The daughter separated from her husband in March 2016 and lives in a property registered in her name in Ruby Place, Orewa. Pursuant to a relationship property separation…

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 Murray v Piggott

Details

AGLC: Murray v Piggott [2019] NZHC 2568
Case: [2019] NZHC 2568
Decision Date: 9 October 2019

CaseChat Overview and Summary

The case of Murray v Piggott involves a dispute between a father and his daughter over a payment of $151,079.78 made by the father to the daughter. The father claims that the payment created a resulting trust, under which he would occupy the daughter's home in exchange for the daughter using the money for mortgage repayments, outgoings, and renovations. The daughter contends that the payment was an "early inheritance" and therefore a gift. The daughter has applied for security for costs, arguing that the father's claim is weak and lacks merit. The father accepts that the threshold test of impecuniosity has been established, but the critical issue is whether the Court should exercise its discretion to make an order for the payment of security.

The legal issues the court was required to decide included whether the father's claim for a resulting trust was weak and whether it was appropriate to order security for costs. The court considered the relevant legal principles and found that the decision to order security and the quantum of such security was at the discretion of the Court. The court also considered the merits and prospects of success of the claim and whether the defendant's actions caused the plaintiff's impecuniosity.

In its reasoning, the court found that the evidence on the critical issue of the purpose for which the funds were provided to the daughter was clearly disputed, and there was little documentary evidence directly on that key point. The court found that the father's claim to a resulting trust was not a weak one and that the father had a tenable basis for contending that he intended to retain some beneficial ownership of the funds that were arguably used by the daughter to both improve the value of, and increase her equity in, the home. The court also found that ordering security for costs would prevent the father from having his case heard and determined and that the evidence established that the father's impecuniosity was caused by his using his life savings for his daughter's benefit.

The court concluded that there should be no security for costs and dismissed the daughter's application. The court also suggested that the parties pursue mediation or alternative dispute resolution processes to resolve their dispute more efficiently and cost-effectively. The court found that the plaintiff father was successful and that the defendant daughter should pay costs to him and on a 2B basis. If the parties could not agree on costs, the court would determine the matter on the papers.

Orders