Rawson v Prescott - [2024] NZHC 1919

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1616

[2024] NZHC 1919

BETWEEN
ROY WILLIAM RAWSON

Plaintiff

AND

LUCINDA JANE PRESCOTT

Defendant

Hearing:
26 February 2024

Further submissions received on 14 and 28 March 2024

Appearances:

SJ Irons and SM Bolland for the Plaintiff T Bloy and R Hayes for the Defendant

Judgment:

15 July 2024

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 15 July 2024 at 10 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Evolution Lawyers, Auckland Young & Caulfield, Auckland Rubicon Chambers, Wellington

RAWSON v PRESCOTT [2024] NZHC 1919 [15 July 2024]

Introduction

[1] The applicant, Roy Rawson1 seeks summary judgment of his claim for orders granting vacant possession of a property in Browns Bay, Auckland. Roy is the registered proprietor of the property as trustee of a trust set up by his late brother, George Rawson, in 2004. George passed away unexpectedly in July 2022. Roy is also the sole executor of George’s estate.

[2] The defendant, Lucinda Prescott, is George’s widow and resides in the property. Lucinda opposes summary judgment on the basis that Roy is estopped from acting against George’s wishes as expressed in a 2013 memorandum of wishes relating to the trust. The 2013 memorandum says that on George’s death, George’s wish is that Lucinda is to be appointed beneficiary of the trust and will have the right to reside in the property for life or until she enters into a relationship in the nature of marriage. At that point George’s wish is that the property is transferred as to a one-half share for Lucinda’s two daughters, one-quarter share to Jacob Rawson (George’s informally adopted son) and one-quarter to Lucinda or her estate.

[3] Lucinda accepts that ordinarily a memorandum of wishes will not be binding on a trustee. However, she says that she and George entered into an agreement contracting out of the Property (Relationships) Act 1976 and requiring adherence to the 2013 memorandum. The contracting out agreement refers to the 2013 memorandum in a clause headed “Protection of Lucinda”. This clause provides that on his death George’s separate property (which is set out in schedule A to include all of the assets comprising the trust fund and any dwelling house):

shall be applied in such manner as shall benefit and protect Lucinda generally in accordance with the provisions for her protection set out in the attached Will dated 15th March 2013 and the Memorandum of Wishes dated 15th of March 2013.

[4] Lucinda says she has an arguable defence based on this clause that Roy is estopped from seeking that she vacate the Property. In addition, she says there are a

1 I refer to the parties and those involved in this application by their first names to avoid confusion. I intend no disrespect in doing so.

number of factual disputes which render Roy’s claim unsuitable for summary judgment.

[5] Lucinda…

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: [2024] NZHC 1919
Decision Date: 15 July 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Roy William Rawson sought summary judgment to evict Lucinda Jane Prescott from a property in Browns Bay, which was held by the George Rawson Family Trust. Lucinda opposed the application, claiming that Roy was estopped from evicting her as per the wishes expressed in a 2013 memorandum of wishes. The court had to determine if Lucinda's estoppel defence was reasonably arguable, if there were sufficient factual disputes to deny summary judgment, and if Lucinda had a defence under the Property Law Act 2007. The court found that it was reasonably arguable that Lucinda's estoppel defence could be established, that there were factual disputes not suitable for summary judgment, and that the court was not in a position to determine Lucinda's defence under the Property Law Act without further evidence. Consequently, the court declined Roy's application for summary judgment.

Orders