Pollard v Pollard - [2015] NZHC 1140

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-000390 [2015] NZHC 1140

BETWEEN
DOUGLAS JOHN POLLARD AND

GURNELL HARRISON TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE POLLARD FAMILY TRUST Plaintiffs

AND

MARK IAN POLLARD, KAZIA

DIANNE POLLARD, BAILEY INGHAM TRUSTEES LIMITED AS TRUSTEES

OF THE PRESENT AND FUTURE TRUST

First Defendants

SAMUEL ANTHONY LAUBSCHER Second Defendant

LAMB BAIN LAUBSCHER LAWYERS Third Defendant

Hearing: 16 April 2015

Appearances:

V A Whitfield and M J Meier for Plaintiffs
G H J Brant and C Grenfell for Defendants

Judgment:

26 May 2015

JUDGMENT OF VENNING J

This judgment was delivered by me on 26 May 2015 at 4.15 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Whitfield Braun Limited, Hamilton
Edmonds Judd, Te Awamutu
Jones Fee, Auckland
Stace Hammond, Hamilton

POLLARD & ANOR v POLLARD & ORS [2015] NZHC 1140 [26 May 2015]

Introduction

[1] This application for summary judgment arises out of a family transaction involving the transfer of the family farm of Doug Pollard and his wife (owned through the Pollard Family Trust) to their son, Mark Pollard and his wife Kazia by means of a transfer by the Pollard Family Trust to the Present and Future Trust (Mark’s Trust).

[2] Following settlement of the sale a substantial sum of money remained owing by Mark’s Trust to the Pollard Family Trust. Relations between the parties have broken down. The Pollard Family Trust has called up the moneys recorded as owing by Mark’s Trust. The Pollard Family Trust seeks summary judgment for the full amount or, in the alternative, summary judgment for such lesser amount the Court might find is indisputably due and owing by Mark’s Trust.

Background

[3] The Pollard family have lived and farmed on land at Te Rahu Road, Te Awamutu for a number of generations. The land was initially farmed by John Pollard and his wife Nancy, then by his son Doug and his wife Lesley, and now in turn by Doug’s son, Mark and his wife Kazia.

[4] Doug and his wife Lesley (now deceased) had four children. Mark is the oldest. After a period working away from the farm Mark returned to the farm in about 1996. None of the other children had an interest in farming. In 2001 Mark and Kazia purchased an adjoining five hectare block which was farmed in conjunction with the Pollard Family Trust land.

[5] In 2005 Doug and Lesley discussed the future of the farm with Mark and Kazia. Ultimately it was decided the farm should be auctioned. If a good price was achieved at auction a larger property which could provide sufficient income for all could be purchased. The land auctioned included the five hectares owned by Mark and Kazia as well as most of the land that Doug and Lesley wanted to reserve as a lifestyle block. There is a dispute as to the highest bid achieved at the auction, but in any event, it did not sell. Doug did…

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 [2015] NZHC 1140
Case: [2015] NZHC 1140
Decision Date: 26 May 2015

CaseChat Overview and Summary

The case of Pollard v Pollard involves a family transaction where Doug Pollard and his wife, through the Pollard Family Trust, sold their family farm to their son Mark and his wife Kazia via Mark's trust, the Present and Future Trust. Following the sale, a substantial debt remained, which the Pollard Family Trust sought to recover from Mark's Trust. The court had to determine whether Mark's Trust had a defence to the claim, specifically an estoppel preventing the full recovery of the debt. The key issues were whether there was an agreement that limited the amount that could be called up to $500,000 and whether such an agreement, if it existed, would bind the Pollard Family Trust. The court found that there was a reasonable argument that such an agreement existed, based on the evidence of Mark and his banker, and that it was arguable that the Pollard Family Trust was bound by this agreement. Consequently, the court granted summary judgment for a lesser amount, considering certain agreed deductions. The court reserved the issue of interest for the substantive hearing. The costs were fixed on a 2B basis, reserving the incidence of the costs to follow the outcome of the substantive proceeding. A case management conference was ordered to manage the remaining issues.

Orders