IN THE COURT OF APPEAL OF NEW ZEALAND
CA365/2008
[2009] NZCA 541BETWEENALAN STANLEY PERKINS AND ADRIENNE ROSEMARY PERKINS
Appellants
ANDTERE MOANA PUREA
First RespondentANDTOM TANGI-TUAKE AND JUNE TANGI-TUAKE
Second Respondents
Hearing:2 April 2009
Court:William Young P, Chambers and Ellen France JJ
Counsel:N W Woods for Appellants
D G Smith for First Respondent
W G C Templeton and P J Stevenson for Second Respondents
Judgment:18 November 2009 at 9.30am
Reissued:20 November 2009: see minute of 20 November 2009
Effective date of judgment 18 November 2009
JUDGMENT OF THE COURT
AThe appeal is dismissed.
B The cross-appeal by the first respondent is dismissed.
C Costs are reserved.
REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No
A family arrangement unravels [1]
Issues on the appeal [16]
Was the Judge correct to find that an agreement was reached in 1988under which Mrs Tangi-Tuake would potentially become the
owner of the property? [21]
Mrs Tangi-Tuake was wrong as to who the contracting parties
were[25]
Miscalculation of the amount paid by the Tangi-Tuakes [27]
The Judge ignored cross-examination [28]
The Tangi-Tuakes’ case was inconsistent with John Mansfield’s
evidence [37]
Mr Purea’s medical records [46]
Issebell Purea’s evidence should have been given more weight [49]
Mrs Purea’s will [52]
The pleadings [55]
Conclusion[58]
Must the Perkins’ equitable interest in the property defeat
Mrs Tangi-Tuake’s because of s 182 of the Land Transfer
Act 1952?[61]
Whose equitable interest should prevail? [70]
Onus on the Perkins? [77]
Proposition not put to Mr Perkins [79]
Mrs Tangi-Tuake’s delay in lodging a caveat [83]
Mrs Tangi-Tuake’s failure to check on Mr Mansfield [90]
Conclusion[99]
Was the Judge correct to grant Mrs Tangi-Tuake specific performance? [101]
Was the Judge correct to refuse the Perkins damages under
clause 3.10(2)? [110]
Result and costs [123]
Two unresolved matters [127]
A family arrangement unravels
[1] In 1970, Keri and Tere Purea, the latter being the first respondent, bought a property at Rowandale Avenue, Manurewa. In 1988, they decided they wanted to live primarily in the Cook Islands, Mr Purea’s homeland. They owned some land there and wanted to build a house on it. To raise the money, they rearranged their borrowings on the Rowandale Avenue property. It was by then worth about $85,000. ASB Bank agreed to lend them $47,000, to be secured by first mortgage. For this deal to work from the Pureas’ point of view, of course, they needed someone who would pay off the mortgage. Renting the house out would not bring in enough income and further the Pureas wanted to be able to use the house whenever they returned to New Zealand to visit family and friends. Obviously, if all of the Pureas’ wishes were to be fulfilled, some arrangement was required with a family member living in Auckland.
[2] According to June Tangi-Tuake, the Pureas’ daughter, her parents at that stage offered the Rowandale Avenue home to their children on the basis that, if they moved in and…
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- Perkins v Purea [2009] NZCA 541
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- [2009] NZCA 541
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Orders
Orders of the court
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Background
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Evidence
Evidence Before The Court
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