Patterson v Patterson
[2025] NZHC 1762
•30 June 2025
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2024-025-000125
[2025] NZHC 1762
BETWEEN RAYMOND DEAN PATTERSON
Plaintiff
AND
BERNARD ARTHUR PATTERSON
Defendant
Hearing: 9 April 2025, further evidence 13 June 2025 Appearances:
R G R Eagles for Plaintiff
Judgment:
30 June 2025
JUDGMENT OF PRESTON J
This is a redacted version of the judgment for publication
This judgment was delivered by me on 5 August 2025 at 2.30pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
PATTERSON v PATTERSON [2025] NZHC 1762 [30 June 2025]
Introduction
[1]The parties in this case are brothers.
[2] The plaintiff, Raymond Patterson (Raymond) seeks an order vesting ownership of a property [in Bluff] (the property) in him.
[3] The defendant, Bernard Patterson (Bernard) is the registered proprietor of the property.
[4] Raymond says, on oath, he believes the property was mistakenly transferred to Bernard solely, instead of to the two brothers jointly as had been their late grandmother’s stated intention. Consistent with that intention, Raymond later reached an oral agreement with Bernard for consideration that Bernard would assign his interest in the property to Raymond (the oral agreement). In reliance on the oral agreement, Raymond says thereafter he paid all rates related to the property and undertook and paid for maintenance.
[5]However, in fact Bernard never transferred the property to Raymond.
[6] As a result, Raymond claims Bernard holds the property as trustee for Raymond under a constructive or resulting trust in his favour. Raymond asks this Court to correct this and perfect the oral agreement, by vesting the property in him.
[7] The proceeding was personally served on Bernard. No defence was filed to the claim and Bernard has taken no step to defend it. Accordingly, it was set down to for a formal proof hearing.
[8]To determine the application I must consider the following issues:
(a)Was there an oral agreement that Bernard would transfer the property to Raymond?
(b)If so, is that agreement enforceable?
Procedural history
[9] The claim was initially filed in the District Court but subsequently transferred to this Court for determination as there was doubt whether the District Court had jurisdiction to determine the claim.
[10] At the hearing before me as Duty Judge it became apparent there was an omission within the evidence filed in support of the claim on an aspect central to the claim, as discussed below. Counsel for Raymond, Mr Eagles sought leave of the Court to address this oversight, and indicated he anticipated the lacuna in the evidence would be able to be addressed. There was no prejudice in this course. Accordingly leave was granted to file further evidence.
Background
[11] The factual background is explained in Raymond’s first affidavit in support of formal proof. The property is (now) a vacant section. Based on a recent rating notice and homes.co.nz online valuation the property is valued between $75,000 and
$100,000.
[12] Charles Patterson, the parties’ grandfather acquired the property in 1962, living there with his wife, the parties’ grandmother Eileen Patterson, in an old house on the property. Raymond was born in the house in 1965. He and Bernard lived their early years there with their parents and siblings but by 1972 had left, with their mother and three other siblings.
[13]When Charles died in 1982 the property was transferred to Eileen.
[14] The parties’ father Brian Patterson continued to live at the property for a time with Eileen until she died. It was later rented out and eventually became decrepit and was demolished. Brian died in 2003 and was not involved in the ownership of the property. Since 2002–2003, Raymond has maintained the property by clearing broom and gorse and mowing.
[15] In discussions with Eileen before she died, she informed both Raymond and Bernard it was her wish that the property be gifted to them, jointly. Raymond says he believed this had occurred and based on this the parties began paying rates, alternately, on a quarterly basis.
[16] However, the title search shows that the property was transferred into Bernard’s sole name in 1990. Raymond was unaware of this at the time and says this was done in error, given the stated wishes of Eileen Patterson. A certificate of title was issued on 12 June 1990.
[17] By 2003, Raymond was aware the property was in Bernard’s sole name. At that time, Raymond was using space at [an alternative address] which had been leased to Bernard as he was building a workshop. Bernard required but was unable to pay for a Casadei V320 Edging Machine which cost around $13,000. The brothers agreed that Raymond would pay for the machine, and Bernard would assign his interest in [the property] to Raymond. At that time, the property was thought to be worth $1,500. To equalise the value of the agreement, it was agreed further that Raymond would not have to pay rent for the use of the space at [the alternative address] for several months.
[18] In reliance on this agreement, Raymond arranged for the Invercargill City Council property rates to be issued in his name. He has paid all of the rates on the property since 2002–2003, originally by cash, later by cheque and now via internet banking. The first affidavit also confirms payment of rates to Environment Southland for as long as their records have continued.
[19]The property remains a vacant section.
Analysis
Approach on formal proof hearing
[20] On a formal proof hearing, I must be satisfied that the affidavit evidence establishes each cause of action Raymond relies upon.1
1 High Court Rules 2016, r 15.9(4).
[21] Here, the claim alleges an oral agreement which Bernard has failed to honour and seeks specific performance by an order of this Court vesting the property in Raymond. This on the basis that given Raymond’s part performance of the agreement it would be unconscionable (fraudulent in equity) for Bernard to rely on the absence of writing, as a resulting or constructive trust arose by his failure to assign the property to Raymond as he agreed to do.
[22] As noted, this therefore requires examination first whether it is established there was an agreement between the brothers and if so, second, whether Raymond is entitled to enforce that agreement.
Was there an agreement that Bernard would transfer the property to Raymond?
[23] Raymond’s account of the agreement struck in 2003 is set out in his first affidavit and supplemented in his second affidavit which provided further proof of the position he had explained in the first, that he had taken full responsibility for both payment of rates and maintenance of the property, since the time of the agreement the basis of the claim.
[24] In general, a contractual promise to do something is not binding unless given for consideration.2
[25] On Raymond’s account on oath, the oral agreement was made for Bernard to transfer his interest in the property to Raymond, in return for agreed consideration, the principal part of which was the purchase of an asset for Bernard’s joinery business.
[26]Raymond deposes that:
At this time I was using some space at [the alternative address] which had been leased to Bernard. I was at the time building a new workshop. Bernard needed money for the purchase of a Casadei V320 edging machine, used for joinery, and we discussed the section at Bluff. By this time I knew that it was in Bernards’ (sic) sole name.
2 Stephen Todd and Matthew Barber Burrows, Finn and Todd on the Law of Contract in New Zealand (7th ed, LexisNexis, Wellington, 2022) at [4.1.1- 4.1.2].
[27] Raymond deposes that Bernard was unable to pay for the edging machine, and that he (Raymond) agreed to pay for it for his brother “on the basis that Bernard would assign his interest in [the property, to Raymond], to equalize”. The Casadei V320 machine cost around $13,000. Raymond further says that given the property was then worth only around $1,500, he was provided rent-free use of Bernard’s workshop space for several months, in addition.
[28] I am satisfied the evidence establishes an agreement was in place, containing clear terms—the transfer of a property interest for appropriate and fair consideration, based on then current valuations.
Is the agreement enforceable?
[29] At the time the brothers entered into the alleged agreement, the Contracts Enforcement Act 1956 applied, imposing a statutory requirement that contracts relating to land be in writing. Relevantly s 2 of that Act required that, in order to be enforceable, contracts for the disposition of land must be in writing however the doctrine of part performance was unaffected:
2 Proof of contracts relating to land and to guarantees
(1)This section applies to—
(a)Every contract for the sale of land:
(b)Every contract to enter into any disposition of land, being a disposition that is required by any enactment to be made by deed or instrument or in writing or to be proved by writing:
(c)Every contract to enter into any mortgage or charge on land:
(d)Every contract by any person to answer to another person for the debt, default, or liability of a third person.
(2)No contract to which this section applies shall be enforceable by action unless the contract or some memorandum or note thereof is in writing and is signed by the party to be charged therewith or by some other person lawfully authorised by him.
(3)Nothing in this section shall—
(a)Apply to any sale of land by order of the High Court or through the Registrar of that Court:
(b)Apply to any alienation of Maori land by a Maori, being an alienation that is required by the Maori Affairs Act 1953 to be confirmed by the Maori Land Court, or to any sale of Maori land by order of that Court:
(c)Affect the operation of the law relating to part performance.
(4)For the purposes of this section,—
Disposition includes any conveyance, transfer, grant, partition, exchange, lease, assignment, surrender, disclaimer, appointment, settlement, or other assurance; and any declaration or creation of a trust; and any devise, bequest, or appointment by a will
Land means any estate or interest, whether freehold or chattel, in real property.
(5)The foregoing provisions of this section apply only to contracts made after the passing of this Act.
(6)This section is in substitution for section 4 of the Statute of Frauds 1677 of the Parliament of England, and that section shall cease to be in force in New Zealand, except in respect of contracts made before the passing of this Act.
[30] To similar effect, s 49A(1) of the Property Law Act 1952, as then in force provided:
49A Certain instructions to be in writing
(1) No legal interest in land may be created or disposed of except by writing signed by the person creating or conveying the same or by his agent lawfully authorised in writing in that behalf, or by will, or by operation of law.
…
(4) This section does not affect the creation or operation of resulting, implied, or constructive trusts.
(5)Nothing in this section shall—
…
(d) Affect the operation of the law relating to part performance.
(6) This section is in substitution for sections 1 to 3 and 7 to 9 of the Statute of Frauds 1677 of the Parliament of England, and those sections shall cease to be in force in New Zealand, except in respect of the creation or conveyance of any interest in land, or a declaration of trust, or a disposition of an equitable interest or trust, before the commencement of this section.
[31] No written agreement, memorandum or note3 was ever produced or signed by Bernard Patterson, or any person on his behalf.
[32] Raymond’s claim therefore relies on the doctrine of part performance, as has long been recognised in the New Zealand courts drawing on common law authority.
[33] The doctrine of part performance is said to be underpinned by two concepts: that equity will not allow the Statute of Frauds itself to become an instrument of fraud, and second, the acts of part performance are treated for probative purposes as a satisfactory substitute for the statutory requirement for writing. 4 In that sense, it was thought that acts done by the plaintiff could in themselves prove the existence of the contract in a way that could be an acceptable substitute for the written agreement required by statute.5
[34] The test for establishing part performance remains that as outlined by Tipping J in TA Dellaca Limited v PDL Industries Limited and approved by the Court of Appeal in Mahoe Buildings Ltd v Fair Investments Ltd and in Fleming v Beevers. 6 More recently, the Court of Appeal applied the test in Nguyen v SM and T Holmes Limited:7
1.Is there a sufficient oral agreement such as would have been enforceable but for the Act?
2.Has there been part performance of that oral agreement by the doing of something which:
3 The successor provisions to ss 2(2)(a) of the Contracts Enforcements Act 1956 and 49A(1) of the Property Law Act 1952, ss 24–26 Property Law Act 2007, depart from the terminology requiring a contract in writing or memorandum or note, referring instead to a “contract for the disposition of land” in writing. However, the Courts have not treated this as substantially affecting the law: see Stephen Todd and Matthew Barber, above n 2 at [9.2.4], citing Perkins v Purea (2008) 9 NZCPR 266 at [77] and LG v MER [2010] NZFLR 1001 at [126]. Section 25(4)(a) of the Property Law Act 2007 further retains the express acknowledgement that it does not affect the creation or operation of a resulting, implied or constructive trust.
4 Stephen Todd and Matthew Barber, above n 2 at [9.3.1], citing Fleming v Beevers [1994] 1 NZLR 385 (CA) and Perkins v Purea, above n 3.
5 Stephen Todd and Matthew Barber, above n 2 at [9.3.1].
6 TA Dellaca Limited v PDL Industries Limited [1992] 3 NZLR 88 (HC) at 50–51; Mahoe Buildings Ltd v Fair Investments Ltd [1994] 1 NZLR 281 (CA) at 11; Fleming v Beevers above n 4 at 11.
7 Nguyen v SM and T Holmes Limited [2016] NZCA 581, [2017] 3 NZLR 281 at [32]. The test includes a slight amendment as suggested in Fleming v Beevers at 13.
(i)clearly amounts to a step in the performance of a contractual obligation or the exercise of a contractual right under the oral contract; and
(ii)when viewed independently of the oral contract was, on the probabilities, done on the footing that a contract relating to the land consistent with that alleged, was in existence?
3.Do the circumstances in which that part performance took place make it unconscionable (fraudulent in equity) for the defendant to rely on the [Contracts Enforcement] Act?
[35] Raymond points to two actions as evidencing his part performance of the agreement. First, the payment of all rates on the property since 2002–2003; Raymond has taken on sole responsibility for and paid both Invercargill City Council and Environment Southland rate obligations (and continues to do so). Second, he relies on the ongoing maintenance of the property he has undertaken (and/or paid for) since that same time; for the past 22 or so years.
Has there been sufficient acts of part performance?
[36] The act in question must be performed by the party seeking to rely on part performance.8
[37] The first affidavit attached evidence of receipt of Raymond’s rate payments to the Invercargill City Council between 2006–2013. It was intended an email from Environment Southland confirming payment of rates for as long as their records continued was also put before the Court but this was not included in the first affidavit. I granted permission to provide further evidence on this aspect, by a second affidavit.
[38] The second affidavit attached the email from Environment Southland sent to Raymond’s counsel’s office which stated, “[w]e have always had Raymond Patterson as the rate payer since the house was constructed.” Further evidence of Raymond’s rate payments to Invercargill City Council from 2013–2024 was provided and it was confirmed Raymond has paid the rates on the property since 2002/2003.
8 Nguyen v SM & T Homes Ltd, above n 7 at [34] citing Mahoe Buildings Ltd v Fair Investments Ltd above n 7 at 287.
[39] A short window of time therefore emerges, between 2002/2003–2006 where receipt evidence of rate payments is absent. However, I am satisfied on the evidence on oath that Raymond did assume the obligation to pay rates following the oral agreement. Prior to this time the brothers had been sharing that financial obligation, consistent with the original understanding that Eileen intended to (and would in fact) transfer the property to them both. Raymond deposes that following the agreement with Bernard he “arranged, in anticipation that the agreement would be put into effect, for all of the rates demands to be issued in [his] name”. The arrangement was clearly made on the footing that a contract relating to the land consistent with that alleged was in existence.
[40] Further Raymond’s evidence in the second affidavit confirms his assertion he assumed responsibility for the maintenance costs: he refers to a time “[s]ome years ago [when] Environment Southland cleared broom and gorse from the property and invoiced [Raymond]”—although Raymond has been unable to locate the invoice for such work, his evidence of this is consistent also with the fact that the Council records show him as the sole ratepayer in respect of the property.
[41] I am satisfied that the affidavit evidence establishes Raymond took full responsibility for the financial management of the property which amounts to a sufficient act of part performance.
[42] Turning to the second action relied upon, acts of maintenance. Raymond says that since 2002–2003 he has maintained the property, by then a vacant section, clearing broom and gorse and now mowing it. While it is conceivable that Raymond may have in any event maintained the property following the parties’ father’s death in 2003, for example due to his own emotional connection with the property, there is no evidence to counter his claim on oath that since that time he, and he alone, undertook these acts of maintenance to upkeep the section. This, too, I find evidences part performance. It is a further act amounting to the exercise of a contractual right, and viewed independently was on the probabilities done on the footing the oral agreement relating to the property was in existence.
[43]This limb of the T A Delleca test is accordingly met.
Do the circumstances make it unconscionable for the defendant to rely on the Contracts Enforcement Act?
[44] Part performance operates to prevent a party denying the effect of a contract when that party has stood by and allowed the other to expend labour or money in performing the contract.9 Raymond’s payments of rates has been occurring for more than two decades. There is no evidence before me to suggest that Bernard at any stage during that period questioned or challenged Raymond’s assumption of rate obligations. Evidence of the rates payments demonstrates Raymond has outlaid considerable cost on the property over the decades. In the circumstances it would be unconscionable for Bernard to retain his interest in the property.
[45] For these reasons, I am satisfied that an oral contract exists between the parties and that Raymond has established part performance of that oral contract so that the remedy of specific performance is available.
Result
[46] There is an order that Bernard Arthur Patterson’s proprietary interest in the property at [Bluff], having legal description as set out in the schedule to the plaintiff’s statement of claim be vested in Raymond Dean Patterson.
[47] I direct counsel to prepare the transfer documents and I authorise the Registrar to sign those documents, and any necessary ancillary documents, on behalf of Bernard Arthur Patterson.
9 Actionstrength Ltd (t/as Vital Resources) v International Glass Engineering IN.GL.EN SpA [2003] 2 All ER 615 (HL) at [22] citing Steadman v Steadman [1976] AC 536. The principle was applied in Tait-Jamieson v Cardrona Ski Resort Ltd [2012] 1 NZLR 105 (HC) at [44].
Costs
[48] Although initially pleaded, counsel for Raymond confirms he does not pursue any order for costs. There is no order for costs, accordingly.
………………………………………
Preston J
Solicitors:
Eagles Eagles & Redpath, Invercargill
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