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Read v Almond

Read v Almond

Case [2015] NZHC 2797 11 November 2015

Constructive Trust

Resulting Trust

Unjust Enrichment

Breach of Fiduciary Duty

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002991

CIV-2014-404-001278 [2015] NZHC 2797

BETWEEN
BRUCE JAMES READ

First Plaintiff

AND

ETHNE GLADYS READ Second Plaintiff

AND

CHRISTOPHER JOHN READ Third Plaintiff

AND

JANFERIE MAEVE ALMOND Defendant

Hearing: 7 - 11 and 17 - 18 September 2015

Appearances:

J Airey/A Dullabh for the First Plaintiff
N Woods/S Rhind for the Second and Third Plaintiff
D Law for the Defendant

Judgment:

11 November 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 11 November 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Rice Craig, Auckland.
Law & Associates, Manukau.

READ & ORS v ALMOND [2015] NZHC 2797 [11 November 2015]

Introduction

[1] The first plaintiff, Bruce Read, the third plaintiff, Chris Read, and the defendant, Ms Almond, are all children of the second plaintiff, Mrs Read, and her late husband, Fred Read.

[2] Ms Almond is the sole registered owner of a property at 152 Ramarama Road, Drury (the Property). The plaintiffs claim there was an oral agreement between all members of the family at the time the Property was purchased in 2002 to the effect that they would each own shares in the Property based on their respective financial contributions to the purchase price and improvements subsequently made to the Property. They claim to have made other financial contributions on the same understanding.

[3] The plaintiffs seek orders declaring that Ms Almond holds shares in the

Property on trust for them.

[4] The plaintiffs bring five causes of action: constructive trust, resulting trust, unjust enrichment, knowing receipt and, in relation to Mrs Read, breach of an enduring power of attorney under the Protection of Personal and Property Rights Act
1988 (PPPR Act).

The pleadings

Bruce Read

[5] Bruce Read alleges that he made financial contributions to Ms Almond for the purchase of the Property by way of an initial payment of $130,000 in July 2002 towards the acquisition of the Property and a further contribution of $6,000 on or about 25 July 2002.

[6] Bruce Read claims that both of these payments were made on the understanding that, when Ms Almond had completed construction of her house and subject to the approval of Ms Almond’s mortgagee, he would receive a share of the

Property based on his contribution. In the absence of such consent, the Property would be divided upon repayment of Ms Almond’s mortgage.

[7] Bruce Read also alleges that he made a further payment of $50,000 which Ms Almond agreed was to be treated as his purchase of a share in the Property then owned by one of Ms Almond’s daughters, Rebecca.

[8] On this basis, Bruce Read claims an entitlement to 40.3 per cent of the Property. This interest is claimed by way of constructive trust, or, in the alternative, by way of knowing receipt or resulting trust.

[9] In each case, he claims relief by way of an order that Ms Almond holds a…

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 Read v Almond

Details

AGLC: Read v Almond [2015] NZHC 2797
Case: [2015] NZHC 2797
Decision Date: 11 November 2015

CaseChat Overview and Summary

The case involved a dispute over the ownership of a property in Drury, New Zealand, between the plaintiffs, Bruce James Read, Ethne Gladys Read, and Christopher John Read, and the defendant, Janferie Maeve Almond. The plaintiffs claimed that there was an oral agreement between all family members at the time the property was purchased in 2002 that they would each own shares in the property based on their respective financial contributions to the purchase price and improvements made to the property. They sought orders declaring that Almond holds shares in the property on trust for them. The legal issues the court had to decide included whether an institutional constructive trust existed, and if so, the extent of the plaintiffs' entitlement to shares in the property. The court found that an institutional constructive trust did arise by operation of law, and each plaintiff had clearly contributed in more than a minor way to the purchase of the property and/or the improvements on the property. The court also found that Almond breached her duties as Mrs Read's attorney in relation to the payment of money to her from Mrs Read's bank account, entitling Mrs Read to compensation of $29,176 plus interest. The court ordered the sale of the property and the division of the proceeds amongst the co-owners in the shares determined by the court.

Orders