Parbery v Parbery - [2012] NZHC 1319

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-001678 [2012] NZHC 1319

BETWEEN JAMES KIRTLAND PARBERY Plaintiff

ANDJULIAN DAVID PARBERY First Defendant

ANDJULIAN DAVID PARBERY AS A TRUSTEE OF THE JULIAN PARBERY FAMILY TRUST
Second Defendant

Hearing: 11 June 2012

Appearances: J M Kirkland and A N Riches for Plaintiff
P A Cowey and C Corlett for Defendants

Judgment: 12 June 2012

ORAL JUDGMENT OF CHISHOLM J

[1] Three interlocutory applications require determination: an application by both defendants for summary judgment against the plaintiff; an application by the plaintiff to join an additional second defendant; and an application by the plaintiff for summary judgment against the first defendant (which was advanced orally by Mr Kirkland during the hearing). All these applications are opposed.

[2] On 15 March 2012 Judge Matthews dismissed an application by the plaintiff for summary judgment against the first defendant. Although the claim only involves
$40,000 plus interest and the underlying issues are relatively straight forward, this proceeding seems to have taken on a life all of its own. The litigants are two
brothers who had been in business together.

PARBERY V PARBERY HC CHCH CIV-2011-409-001678 [12 June 2012]

[3] The plaintiff (James) claims that the first defendant (Julian) received $40,000 on his behalf and failed to account to him for that money. Julian responds that he has accounted to James for the $40,000 and James is trying to “double dip”.

Background

[4] In August 2004 Mrs Parbery, the mother of James and Julian, sold a holiday property in Wales. It is not disputed that each brother was entitled to GB£15,000 from the sale proceeds. For present purposes that sum can be taken as equating with NZ$40,000.

[5] By the time the property was sold James and Julian had been in business together in New Zealand for some years. They had both formed family trusts and their primary business vehicle was a company, Heat Exchanger Services Limited (HESL). Both brothers were directors of that company.

[6] A third brother, Giles, remained in the United Kingdom where Mrs Parbery also lives. Giles arranged the payments in issue on behalf of Mrs Parbery. It is common ground that two payments were made by Mrs Parbery.

[7] First, a payment of £37,513 (US$86,840) on 7 September 2004 (the first payment). The payment was by way of part deposit to a Chinese company supplying a braising oven to HESL. Secondly, a payment of £32,486 (NZ$86,631) on
2 December 2004 (the second payment). This payment went into the bank account

of Julian’s family trust.[1] Beyond that there is not a lot of common ground.

[1] James was not a beneficiary under Julian’s trust (nor, I presume, was Julian a beneficiary under

James’ family trust).

[8] According to James, the first payment is irrelevant to the current dispute. His case is that the second payment included his share ($40,000) of the sale proceeds of the holiday property; without his knowledge Julian directed that payment be made into the bank account of Julian’s…

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.

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Details

Case: [2012] NZHC 1319
Decision Date: 12 June 2012

CaseChat Overview and Summary

In Parbery v Parbery, the High Court of New Zealand heard three interlocutory applications brought by the parties in a dispute between two brothers, James and Julian, over the disposition of funds from the sale of a holiday property in Wales. James brought the action against Julian, as the first defendant, and Julian as a trustee of the Julian Parbery Family Trust, as the second defendant. James claims that Julian received $40,000 on his behalf and failed to account for that money, while Julian contends that he has already accounted for the funds and that James is attempting to "double dip."

The court was required to determine whether to grant the defendants' application for summary judgment, the plaintiff's application for joinder of an additional second defendant, and the plaintiff's application for summary judgment against the first defendant. The court found that the defendants' application for summary judgment must be dismissed as the evidence was insufficient to determine the disputed issues of fact. The court also held that the plaintiff's application for joinder of an additional second defendant was academic and dismissed it. Finally, the court declined to grant the plaintiff's application for summary judgment against the first defendant due to the parties' divergent positions on the factual issues.

The court granted the second defendant's application for summary judgment on the claim against the trustees of the trust, as it was time-barred, and dismissed the cause of action. The court suggested that a resolution could be reached if James received his $40,000 plus interest and the journal entry crediting his current account in the company was reversed. The court ordered that the first defendant pay the plaintiff half 2B scale costs. The issue of costs on the previous summary judgment by the plaintiff was reserved.

Orders