Murrell v Hamilton

[2013] NZHC 3241

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-336 [2013] NZHC 3241

BETWEEN  JANE MAREE MURRELL Plaintiff

ANDWILLIAM ELLIOTT HAMILTON First Defendant

ANDGEOFFREY MIRKIN Second Defendant

ANDWE HAMILTON TRUSTEE LIMITED Third Defendant

Hearing:                   11 and 12 September 2013

Counsel:                  L A Andersen for Plaintiff

D R Tobin for First and Third Defendants
M E Parker for Second Defendant

Judgment:                5 December 2013

JUDGMENT OF PANCKHURST J

Introduction

[1]      This   is   a   constructive   trust   claim.      Ms   Murrell,   the   plaintiff,   and Mr Hamilton, the first defendant, lived in a de facto relationship for about seven years.  For about four years of that time they resided in a new house in Devon Street, Arrowtown.  Construction of the house was nearly completed when they moved into the property.  By the time they moved out of the property, four years later, the house was completed and the section landscaped.

[2]      Ms Murrell claims that she made contributions to both the finishing of the house and the development of the section.   She also claims that Mr Hamilton’s conduct over the relevant time fostered a reasonable expectation on her part that she

had an interest in the property.

JANE MAREE MURRELL v WILLIAM ELLIOTT HAMILTON [2013] NZHC 3241 [5 December 2013]

[3]      Devon Street was owned by the W E Hamilton Family Trust.  Ms Murrell’s claim is resisted both on the merits, and on the basis that she cannot claim against an asset of the Trust.   Further, the extent of any profit made from the sale of Devon Street is in dispute.  Ms Murrell claims that the profit was up to $284,000, of which she seeks a half share.

[4]      Three main issues require determination:

(a)       whether Ms Murrell has a legitimate constructive trust claim,

(b)      if so, what profit was made from the sale and what is the claimant’s

entitlement, and

(c)       is  the  family  trust  Mr  Hamilton’s  alter  ego  so  that  the  claim  is

enforceable against the assets of the Trust.

[5]      Mr  Parker  represented  Mr  Mirkin,  the  second  defendant,  a  solicitor  and formerly a trustee of the W E Hamilton Family Trust.  Mr Parker, however, did not participate in the hearing, but rather limited his involvement to representing Mr Mirkin in relation to any downstream issues which might arise in relation to the Trust.   Following Mr Mirkin’s resignation the third defendant Company became a trustee of the Trust.

Some further factual background

[6]      The  relationship  between  Ms  Murrell  and  Mr  Hamilton  commenced  in February 2002.  Ms Murrell was then separated, but had the care of her teenage son. Mr Hamilton was living with his wife and three children, although he too separated a short  time  later.      Mr  Hamilton  was  living  and  working  in  the Queenstown/Arrowtown area, whereas Ms Murrell worked in Invercargill.

[7]      Over the months until July 2003 the parties saw one another at weekends, some of which Mr Hamilton spent in Invercargill staying with Ms Murrell. Sometimes his children accompanied him.

[8]      In July 2003 Ms Murrell and Mr Hamilton moved…