Perriam v Wilkes - [2012] NZHC 1879

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-425-000284 [2012] NZHC 1879

BETWEEN WENDY JOY PERRIAM Plaintiff

ANDLAWRENCE ERNEST WILKES First Defendant

ANDSTEPHEN JOHN BRADSHAW Second Defendant

ANDALEXANDER MCLENNAN WILSON Third Defendant

ANDLESLEY MARGARET INSTONE Fourth Defendant

ANDJUDITH ELEANOR FLETT Fifth Defendant

ANDQBE INSURANCE (INTERNATIONAL) LIMITED
Third Party

Hearing: On the papers

Counsel: S Callanan for Plaintiff
D J Chisholm for F T Perriam

Judgment: 6 August 2012

RESERVED JUDGMENT OF WOOLFORD J [as to continuation of restraining order]

This judgment was delivered by me on Monday, 6 August 2012 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Lewis Callanan, Auckland
Hornabrook Macdonald, Auckland

Copy to: D J Chisholm, Auckland

PERRIAM V WILKES & ORS HC AK CIV 2009-425-000284 [6 August 2012]

Introduction

[1] The plaintiff issued these proceedings against the partners of an Invercargill law firm known as Macalisters which acted for her husband, Mr Mark Perriam, in setting up a number of companies and trusts to hold a range of business assets. She alleges that Macalisters knowingly set out to defeat her interests in relationship property and thereby breached fiduciary duties owed to her and were guilty of equitable fraud.

[2] In a judgment dated 11 August 2011, Venning J allowed an application for the joinder of the plaintiff’s father-in-law, Mr Frank Perriam, who had received two sums of money from Macalisters in 2008. The Judge ordered the plaintiff to file and serve an amended statement of claim particularising her claim against Mr Frank Perriam by 24 August 2011 (later extended to 2 September 2011). In a separate judgment on 18 August 2011, Venning J made an order restraining the solicitors acting for Mr Frank Perriam from disbursing any part of the sum of $263,362 held to the credit of Mr Frank Perriam pursuant to s 43 of the Property (Relationships) Act
1976.

[3] The plaintiff however chose not to file an amended statement of claim particularising her claim against Mr Frank Perriam and in a judgment dated
15 December 2011, I struck out his name as the sixth defendant. In the same judgment, I also dismissed Mr Frank Perriam’s application to discharge the restraining order made by Venning J on 18 August 2011. I did so largely on the basis of what I thought was a concession by his counsel that the funds at issue may be relationship or separate property and accordingly, the plaintiff may have an interest in them as the wife of Mr Frank Perriam’s son, Mr Mark Perriam. I was mistaken in believing that such a concession had been made by counsel.

[4] There are proceedings in the Family Court involving the plaintiff and Mr Mark Perriam in which the plaintiff claims that the sum of $263,362 is either relationship or separate property but, in any event, claims that the entire sum should be paid out to her.

[5] Upon receipt of my judgment, counsel for Mr Frank Perriam made an immediate application to…

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 1879
Decision Date: 6 August 2012

CaseChat Overview and Summary

The case of Perriam v Wilkes involves a dispute between Wendy Joy Perriam, the plaintiff, and several defendants including Lawrence Ernest Wilkes, Stephen John Bradshaw, Alexander McLennan Wilson, Lesley Margaret Instone, Judith Eleanor Flett, and QBE Insurance (International) Limited. Wendy Joy Perriam alleges that the defendants, who were partners of the law firm Macalisters, knowingly breached their fiduciary duties and engaged in equitable fraud by setting up companies and trusts to defeat her interests in relationship property. The case revolves around the distribution of funds from the Colorado Property Trust and the Perron Group of companies. The court was required to decide whether the funds held by the defendants were relationship or separate property, and whether the restraining order should be continued.

The court found that Wendy Joy Perriam's claims were not sufficiently particularised, and that there was no evidence to support her assertion that the funds held by the defendants were relationship or separate property. The court discharged the restraining order, stating that the plaintiff's failure to particularise her claim was fatal to the continuation of the order. The court also noted that the plaintiff's fourth amended statement of claim had been struck out in its entirety, further undermining her case. The court found that the funds held by the defendants were not necessarily relationship or separate property of the plaintiff or her husband, and that there was no basis for the continuation of the restraining order.

In conclusion, the court discharged the restraining order and ordered that it expire 14 days from the date of the judgment. The court also requested that further costs memoranda be filed by both parties within 14 days of the date of the judgment. The case highlights the importance of particularisation in legal claims and the need for sufficient evidence to support allegations of breach of fiduciary duties and equitable fraud.

Orders