Perkins v Purea - [2009] NZCA 541

IN THE COURT OF APPEAL OF NEW ZEALAND
CA365/2008
[2009] NZCA 541
BETWEENALAN STANLEY PERKINS AND ADRIENNE ROSEMARY PERKINS
Appellants

ANDTERE MOANA PUREA
First Respondent
ANDTOM 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 1988
under 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…

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 Perkins v Purea

Details

AGLC: Perkins v Purea [2009] NZCA 541
Case: [2009] NZCA 541
Decision Date: 18 November 2009

CaseChat Overview and Summary

The case of Perkins v Purea concerns a dispute over the ownership of a property in Manurewa. The Tangi-Tuakes claimed they had an agreement with the Pureas in 1988 to take over the mortgage payments on the property in exchange for ownership once the mortgage was repaid. The Pureas denied this agreement and later sold the property to the Perkins. The Tangi-Tuakes lodged a caveat to protect their claimed interest in the property, leading to the Perkins suing for specific performance. The High Court found in favour of the Tangi-Tuakes, ordering the Pureas to transfer the property to them and awarding the Perkins damages. The Perkins appealed, arguing that the Tangi-Tuakes' equitable interest should not prevail over theirs under section 182 of the Land Transfer Act 1952 and that the Tangi-Tuakes should not be granted specific performance. The Court of Appeal dismissed the Perkins' appeal and cross-appeal by the Pureas, finding the Tangi-Tuakes were entitled to specific performance and that the Pureas hold the property on trust for them. The Court also ruled that the Tangi-Tuakes were not entitled to additional damages under a contractual clause as specific performance was denied. The Court highlighted two unresolved matters: Mr Purea's entitlement to accommodation in Auckland and the potential liability of the Tangi-Tuakes' solicitor for failing to properly lodge a caveat.

Orders