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Pollard v Pollard

Pollard v Pollard

Case [2016] NZCA 186 9 May 2016

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA343/2015
[2016] NZCA 186

BETWEEN	MARK IAN POLLARD, KAZIA DIANNE POLLARD AND BAILEY INGHAM TRUSTEES LIMITED AS TRUSTEES OF THE PRESENT AND FUTURE TRUST Appellants
AND	DOUGLAS JOHN POLLARD AND GURNELL HARRISON TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE POLLARD FAMILY TRUST Respondents

Hearing:	11 April 2016
Court:	Kós, Clifford and Brewer JJ
Counsel:	G H J Brant and C W Grenfell for Appellants V A Whitfield and M J Meier for Respondents
Judgment:	9 May 2016 at 11.30 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence is declined.
B The appeal is dismissed.

C The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós J)

The principal question in this appeal is whether summary judgment for $373,825 entered in the High Court should be reduced by $160,000. The appellants say there is a reasonably arguable case that the respondents are estopped from resisting such a deduction because of an unrecorded representation made in or about February 2006. In the High Court Venning J disagreed.[1]

Background

[1]Pollard v Pollard [2015] NZHC 1140.

The Pollard family have owned and farmed land near Te Awamutu for several generations. In 2005, Doug Pollard and his wife Lesley discussed the future of the farm with his oldest son Mark and his wife Kazia. Mark and Kazia agreed to purchase the family farm and other assets from Doug and Lesley.[2]
[2]The other assets included stock, buildings and equipment and shares in Fonterra Co-operative Group.
The agreement for sale and purchase of 15 August 2005 was between associated trusts. The trustees of those trusts are the present parties to this appeal.
Doug and Lesley’s Pollard Family Trust (Pollard Trust) sold the farm to Mark and Kazia’s Present and Future Trust (P&F Trust). The land sold comprised two blocks:
(a)the “big part”, comprising 73.3414 ha; and
(b)the “small part”, comprising 5.0045 ha.
The sale agreement provided for two sections to be subdivided from the “small part” — and which would remain with the Pollard Trust and not therefore be sold to the P&F Trust:
(a)a block of approximately 6,116 m², which was adjacent to a separate title not being sold known as the “home block” on which Doug and Lesley lived. In essence, the home block was to be augmented by this additional land; and
(b)a second block of approximately 6,511 m² for Mark’s sister Marika to live on.

People of a certain age would recognise these sections as about one and a half acres each.

This intended subdivision would remove approximately 1.2627 ha from the 5.0045 ha “small part” being bought by the P&F Trust.[3] The agreement provided that the subdivision be “generally in the same form” as plans annexed to the agreement, and was subject to variations required by the Waipa District Council, Department of Survey and Land Information, and the District…

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 Pollard v Pollard

Details

AGLC: Pollard v Pollard [2016] NZCA 186
Case: [2016] NZCA 186
Decision Date: 9 May 2016 at 11.30 am

CaseChat Overview and Summary

Pollard v Pollard is an appeal against a decision of Venning J in the High Court at Hamilton, which granted summary judgment to the Pollard Trust against the Present and Future Trust. The High Court granted summary judgment for $373,825, but the appellants sought a reduction of $160,000 on the basis of an alleged representation made by Doug Pollard to Mark Pollard in February 2006. The Court of Appeal dismissed the appeal and refused the application to adduce further evidence. The appeal raised two issues: whether the High Court Judge should have exercised his residual discretion to refuse summary judgment altogether; and whether the Judge should have made a deduction for the 1,840 m2 of additional land transferred to the Pollard Trust on subdivision. The Court of Appeal held that the evidence of the alleged representation was insufficient to establish a reasonably arguable defence of estoppel. The evidence was inconsistent and improbable, and it did not establish a clear and unequivocal representation on which the Present and Future Trust could reasonably rely. The Court of Appeal also held that the High Court Judge had not erred in not exercising his residual discretion to refuse summary judgment. The appellants had not shown that the Judge had proceeded erroneously, failed to consider a relevancy, considered an irrelevancy, or was “plain wrong”. The Court of Appeal dismissed the appeal and ordered the appellants to pay the respondents’ costs.

Orders