Ready Mark Limited v Grant HC Auckland CIV 2010-404-008264

[2011] NZHC 1870

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-008264

BETWEEN  READY MARK LIMITED Plaintiff

ANDJILL GRANT Defendant

Hearing:         14 June 2011

Appearances: T Chubb for the Plaintiff

M W Vickerman for the Defendant

Judgment:      17 June 2011

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

17.06.11 at 5:00 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:

T Chubb, Barrister, Auckland –  [email protected]

M Vickerman, Barrister, Auckland –  [email protected]

READY MARK LIMITED V JILL GRANT HC AK CIV 2010-404-008264 17 June 2011

Overview

[1]      The plaintiff applies for summary judgment to recover the cost of renovation work undertaken for the defendant (Ms Grant).  It claims there is no dispute about the amount claimed.  It also wants Ms Grant to repay her overdrawn current account. It says the amount in question cannot be disputed because it is a matter of company record.

Background

[2]      On 13 July 2010 Judge Ryan of the Family Court delivered his decision upon Ms Grant‟s relationship property claim against Mr Grant.  The learned Judge noted that Mr and Ms Grant were married for about 18 years before separating in June

2005.   Since, they had  sold the family home and divided the proceeds equally between them.  Likewise an interest they had in the company Dovine Olives Limited had been divided equally when that company sold its property.

[3]      The issues raised before Judge Ryan concerned the balance of the property that was owned by the parties, their entities and the family trust.  The J & J Grant Family Trust was settled in February 1997.  Judge Ryan noted that apart from the two properties that were sold since their separation all other property was effectively owned by the trust, save for a College Hill property and a yacht.

[4]      By   her   application   Ms   Grant   sought   various   orders   to   effect   the disestablishment of the trust structures.  She invited the Court to view Mr Grant as having a bundle of rights attached to the trust entities which could be valued for the purpose of a division of relationship property. The trust was controlled by Mr Grant.

[5]      Mr Grant‟s response was to claim that the trust entities were all seeded from his separate property and asserted therefore that no remedy was available to Ms Grant pursuant to s 44 or s 44C of the Property (Relationships) Act 1976 (PRA) by which provisions the Family Court could award compensation in respect of property disposed of to a trust.

[6]      Judge Ryan noted of the evidence that there was an array of inter entity advance accounts through which cash has been transferred over an extended period of time, as needs being.   He recorded that those transactions had been variously referred to as a “money-go-round” and a “glorious conglomeration”.  He also said:

For  reasons that  I will  elaborate on later,  I have  decided that  the  most sensible and practical way of identifying the extent, nature and value of the trust entities is to undertake the exercise Mr McLoughlin adopted when he revised his estimates of value in his affidavit of 21 August 2009. [33]

What he did was to eliminate inter-company accounts which he said, and I accept from the evidence, entirely offset each other to produce a nil balance for  Readymark  Limited,  Readymark  Consultants  Limited,  Oncore  2000

Limited, Cheltenham Five Limited and the J & J Grant Family Trust.   He relegated  other  entity advance  account  balances  to a  secondary level  of consideration.  That exercise, I agree, simplifies the position as reflected in the annual financial statements.   He then removed from consideration a number of entities on the basis that they were either non-trading, dormant or of no value. [34]

[7]      Judge Ryan observed that it was clear that in forming the family trust Mr Grant intended to transfer his various separate property interests into that trust.  The Judge advised that the process he intended to adopt was to identify those assets that were transferred into the trust and then ascertain if Ms Grant had an entitlement in those, at the time they were transferred.  In the course of his considerations Judge Ryan noted that Mr Grant had control over the trust entities because he had the power to appoint and remove trustees and he had an interest in the trust as a discretionary beneficiary.  He said these rights can be properly be called a “package

of rights” in referring to the authority of Walker v Walker [1].  Judge Ryan noted that

[1] Walker v Walker [2007] NZFLR 772.

the issue of the valuation of the package of rights should not proceed on the assumption that the only willing but not anxious purchaser was to be an independent third party who would immediately seek to liquidate the interests. A second factor to be taken into account was not to assume that a value was predicated upon immediate realisation.   Noting that whilst in Walker the package had not been valued Judge Ryan said in his case he was taking Mr McLoughlin‟s approach who did have a valuation of the trust entities.  He noted monies were due from various of the trust

entities to Mr Grant; that the inter entity account balances  offset each other to

produce a negative sum; and that the residual related party balance of $28,129 was unlikely to be settled and as a result was not taken into account.

[8]      The learned Judge then said:

Applying   that   approach   to   the   amended   schedule   produced   by   Mr

McLoughlin, I conclude that the net residual value of the trust entities is

$368,000.  I exlude the $63,000 deduction as set out in that schedule for the same reason Mr McLoughlin excluded it in his second affidavit.  He appears

to have overlooked that he had excluded it in his earlier calculation. [77]

I am satisfied that this is the most practical and realistic way of valuing the package  of rights  being enjoyed  now by [Mr  Grant].   It  recognises the practicalities  of  the  circumstances  applicable  to  the  trust  entities  and  it applies a common sense approach to the valuation of the package of rights. [78]

I find that the package of rights is relationship property... It is impossible now because of the intermingling of relationship property and what might very well have been [Mr Grant‟s] separate property, to identify any pure separate property... [79]

[9]      By his judgment Judge Ryan ordered Mr Grant to pay to Mrs the sum of

$362,000 and then ordered that all interests in the trust entities were declared to be the sole and separate property of Mr Grant.

[10]     This case concerns the claim by the plaintiff, one of the trust entities, to recover certain sums from Ms Grant and includes:

(a)      The sum of $94,466.55 for renovation work carried out at a property owned by Ms Grant at Lake Road, Takapuna, pursuant to s 23 of the Construction Contracts Act / Breach of Contract.

(b)The  sum  of  $154,052  said  to  have  been  borrowed  by  Ms  Grant through her shareholders current account in 4 tranches between 2002 and 2005 as money lent.

[11]     Initially the plaintiff also filed a claim alleging conversion by Ms Grant of a Ford Falcon said to be valued at $3,847.   That claim is no longer pursued but I mention it for I will later discuss the reasons given by Mr Grant for the withdrawal of that claim.

The renovations claim

[12]     Ms Grant purchased the Lake Road property in or about March 2005.  She advised Mr Grant she wished to engage the plaintiff to renovate the property.  The work involved converting a double garage into office space and to install a kitchen and bathroom to convert the residential part of the property into two flats.   It was agreed that when completed the work would be invoiced for payment by Ms Grant. The work concluded at about the time the parties separated in June 2005.

[13]     The plaintiff pleads that at about that time Ms Grant requested it to defer invoicing her „until after her relationship property claim had been settled‟. Ms Grant advised she did not have the funds to pay for the renovations.  The plaintiff pleads that Ms Grant agreed “that at the time of settlement of their relationship property issues, the amount owing for the renovations would be taken into account by the parties”.

[14]     On 17 August 2010 (two months after the delivery of Judge Ryan‟s decision) the plaintiff issued a payment claim pursuant to s 20 of the Construction Contracts Act and served it by post and email upon Ms Grant.  The plaintiff says Ms Grant did not (as she should have if she challenged the amount) issue a payment schedule and did not pay the amount due within the statutory timeframe.

[15]     In the alternative the plaintiff claims Ms Grant was in breach of their oral agreement to make the payment due.

The shareholders’ current account claim

[16]     In relation to the claim to recover Ms Grant‟s shareholders‟ current account deficit the plaintiff pleads she borrowed a total of $154,042 in that:

(a)      In 2002 she withdrew $54,000. (b)      In 2003 she withdrew $19,000. (c)      In 2004 she withdrew $26,845.

(d)      In 2005 she withdrew $54,197.

Issues

[17]     The plaintiff must satisfy the Court that Ms Grant does not have an arguable defence to those claims.  The amount charged for the renovations is not in dispute although belatedly, by her notice of opposition, Ms Grant has claimed that some of the work was not up to code compliance standard and she says she has had to have some of the work repaired at a cost of between $3,000 and $4,000.

[18]     I do not think there is anything to those issues raised belatedly.  They lack specifics or details and were not complained of until the issue of the plaintiff‟s summary judgment claim. The real issue on the summary judgment claim is whether any entitlement remains at all for either the renovations claim or the shareholders‟ account claim to be made by the plaintiff in the outcome of Judge Ryan‟s decision upon Ms Grant‟s successful claim for a half share in the value of Mr Grant‟s bundle of rights.

Discussion

[19]     The plaintiff has  claimed that throughout  Ms  Grant has acknowledged a responsibility to meet the debt due to it “in the outcome” of a resolution of her relationship property claims.  Although Ms Chubb‟s submissions and the plaintiff‟s pleadings have made certain assumptions to the affect that Ms Grant agreed to pay for the renovation costs after the parties settled their differences, I think it is clear that the best available inference of the various statements by and of Ms Grant, have never acknowledged any liability to pay for the renovation costs after the parties‟ differences were settled.  Besides, there was no settlement offer.  Rather, that dispute was decided by Judge‟s orders.

[20]     Consequently, the issue about whether or not a right of action survived for the benefit of the plaintiff is really all about whether any debt at all survived as a result of Judge Ryan‟s orders.

[21]     Of course the position of Ms Grant is that the debt owed to the plaintiff for renovation costs was accounted for in the Court‟s calculation of what was due to her in the calculation of the amount ordered to be paid to her.

[22]     In support of the plaintiff‟s response and of its claim of an existing and separate right of suit to recover the renovation costs, the plaintiff has drawn strength from a minute of Judge Ryan dated 9 August 2010 (about one month after his decision).

[23]     The minute was made in response to memoranda from counsel.  By the first of those from Mr Grant‟s counsel dated 24 July 2010 counsel avers that the Judge‟s decision “does not appear to cover repayment of [the renovation‟s] sum.   It also referred to the fact that the plaintiff‟s  current account showed a debt due by Ms Grant in the sum of $81,007.  Finally, it referred to the fact that Ms Grant‟s vehicle was owned by the plaintiff.

[24]     In counsel‟s memorandum it noted that because of the learned Judge‟s order that all interests in the trust were declared to be the sole and separate property of Mr Grant, that this meant “in effect the $94,460.55, $81,007 as well as the motor vehicle are effectively the separate property of [Mr Grant]”.

[25]     Counsel stated that it may be that the Court overlooked in specifically dealing with those assets. A response from the Judge was invited.

[26]     In a response memorandum Mr Vickerman submitted for Ms Grant that the Court had already made a finding of the liability of Ms Grant in respect of Mr Grant‟s claims.  Counsel added that it was clear that the current account was a tax driven fiction which effectively renamed earnings for work performed by the applicant as drawings.  The claim concerning the car was rejected on the basis of the lack of relevant evidence.

[27]     Mr Vickerman added that in respect of the account of Dovine Olives there had been an imbalance of contributions in favour of Ms Grant in the sum of $52,168. Noting that the Court had disregarded that in balance in directing an equal division

of asset sales proceeds, it was inferred that if there was to be a reassessment of the basis upon which there was an imbalance in shareholding accounts in the plaintiff then so too that should occur in respect of the shareholders‟ accounts of Dovine Olives.

[28]     In a reply memorandum counsel for the plaintiff asserted:

(a)      That Ms Grant admitted she would pay for the renovation costs at settlement and therefore an order should be made recording that non contentious item and that payment would be made.

(b)“It is accepted that [the current account] arose through adjustments in the current account by the accountants and appeared to have been taken into account by Mr McLoughlin as an accountant‟s adjustment in the assessment of Ready Mark Limited.  For that reason [Mr Grant] seeks no further order in relation to the payment of that money.

(c)      It has recently been discovered that the motor vehicle which appears to be of modest value ... has already been transferred by the applicant into her name. Again [Mr Grant] now accepts she can retain this asset as her separate property and does not wish to take this matter further.”

[29]     Before this Court the plaintiff continues to pursue the claims for repayment of the shareholders‟ account.  Counsel advises the plaintiff does not pursue a claim in respect of the return of the motor vehicle.   It is apparent that justification for the concession  regarding  the motor vehicle is  made by Mr  Grant  on  behalf  of  the plaintiff.  Curiously the claim by the plaintiff that it is entitled to pursue recovery of a current account deficit is premised upon the fact that Mr Grant‟s concession that he would not pursue recovery of that amount was not at the same time a concession on behalf of the plaintiff.

[30]     The plaintiff‟s position (of a right of suit able to be pursued independent of the resolution of Ms Grant‟s claims against Mr Grant personally) draws support from the  minute  dated  9  August  2010  from  Judge  Ryan  in  response  to  counsel‟s

memoranda.  The learned Judge said he agreed with the submission that the evidence established a clear agreement between Ms Grant and the plaintiff to the effect that she would have to meet costs of the renovation of the Lake Road property upon the resolution of the proceedings.  He noted his own difficulty however in making the order  sought  by  the  plaintiff  because  the  plaintiff  was  not  a  party  to  those relationship property proceedings and therefore the Judge had no jurisdiction to make the order sought.  The judge suggested that any claim between the plaintiff and Ms Grant should be by way of summary judgment in the civil jurisdiction.

[31]     It will now be apparent from this summary that the grounds of opposition to the plaintiff‟s summary judgment application focus upon a claim that by the Court‟s determination  of  the  amount  due  from  Mr  Grant  to  Ms  Grant  there  was  an assessment of the value of the plaintiff in the course of which Ms Grant‟s debt for renovation costs was taken into account albeit, along with the debts of other entities in Mr Grant‟s control,  they were valued at no  consideration because they were unlikely to be recovered.   Mr McLoughlin, the plaintiff‟s accountant, offered his reasons why this should be so.  Further, as already noted from the judgment of Judge Ryan, this factor was adopted in the process of calculating the amount to be paid to Ms Grant.

[32]     In brief, in opposition Ms Grant claims:

(a)      The matter in issue raised by the plaintiff‟s claim is res judicata and/or the subject of issue estoppel having been determined by Judge Ryan‟s decision of the obligations of Mr Grant which the plaintiff is privy, alter ego or agent.

(b)Alternatively this claim is an abuse of process in the sense of the extended doctrine of res judicata also known as the rule in Henderson v Henderson [2].

[2] Henderson v Henderson 67 ER 313.

(c)      Alternatively the plaintiff is estopped from claiming the sums sought because it, through Mr Grant, represented to the Family Court that any

sums allegedly owing to the plaintiff by Mrs Grant were not repayable (per the evidence of Mr McLoughlin) and in reliance upon that representation  the  Family Court  valued  the  plaintiff  and  made  an award to Ms Grant pursuant to the PRA.

(d)If on the other hand the sums claimed by the plaintiff are claimable against Ms Grant then the value of the plaintiff and hence Ms Grant‟s entitlement to that value is other than was determined by the Family Court and therefore it would be unjust and contrary to PRA principles to entertain the plaintiff‟s claim.

(e)      Alternatively, Ms Grant was a residential occupier of the premises and subject to the Construction Contract Act, the subject of the plaintiff ‟s alleged payment claim, and the alleged payment claim was not accompanied   by   the   materials   referred   to   in   s   20(3)   of   the Construction Contracts Act.

[33]     Although Ms Grant‟s notice of opposition does not refer to the making of an application  for strikeout  of the plaintiff‟s  claim,  her affidavit  in  support  clearly identifies that is the ultimate purpose of her opposition.   The case for strikeout proceeds upon the basis that the plaintiff‟s proceedings are an abuse of process because they are a relitigation of issues determined between Ms Grant and Mr Grant in the Family Court.

[34]     She asserts that the plaintiff is effectively Mr Grant in another guise.  Further that if the plaintiff was granted the relief it sought this it would cut across the decision of the Family Court to produce a result contrary to that decision.  Ms Grant deposes that the Family Court effectively decided she was entitled to 50 per cent of the value of the plaintiff; that in valuing the plaintiff, Mr Grant and his accountant, Mr McLoughlin represented that the amounts claimed in this proceeding (as well as other amounts owed by Mr Grant and his interests) should be ignored as they were not to be repaid; if they had been included in the valuation Ms Grant would have been entitled to a 50  per cent share of those sums (as well as the 50 per cent of the

other amounts owed by Mr Grant and his interests to the plaintiff) which sums far exceeded the amount claimed to be owed by Ms Grant.

[35]     Ms Grant alludes to the fact that Mr McLoughlin‟s report recorded a total sum owing by her to the plaintiff as $147,847.   This is to be contrasted with the plaintiff‟s claims by its summary judgment application for $94,466.55 for renovations, $154,042 for shareholders‟ car account drawings, and $3,847 for the value of the vehicle the plaintiff says belonged to it.

[36]     Ms Grant provided a copy of a document produced by Mr Grant to the Family Court which purported to be a summary of Ms Grant‟s current account for the period FYE02 to FYE05 which concluded that Ms Grant was indebted to the company of the sum of $81,007.   This, apparently, after funds were allegedly transferred  from  Mr  Grant‟s current  account  in  2002  and  2003  of $54,000  and

$19,000 respectively.

[37]     Ms Grant then annexed the financial accounts for FYE05 which recorded the shareholders owed the plaintiff $10,982 in FYE04 and $62,509 in FYE05.  The note for the latter accounts record that the closing balance for Ms Grant‟s shareholders‟ current account if FYE04 was $26,810 and in FYE05 was $81,007.

[38]     The various figures appear to be irreconcilable.

[39]     Ms  Grant  explains  that  until  the  separation  she  and  Mr  Grant  were  the plaintiff, he principally undertaking construction and renovation work, and she running a travel agency.  The income of the plaintiff was used for living expenses. The accounts for the plaintiff were prepared by Brian Leaning, chartered accountant. Mr Leaning confirmed that he, or his firm, prepared the accounts for the plaintiff from March 2003 onwards.  He confirmed in his evidence before the Family Court that Ms Grant queried the moves in the loan accounts for the period from about April

01 to 31 March 05.  He said:

“... we had the situation where [Ms Grant] had drawings coming out of the business, but not the normal sort of credits coming through in the form of shareholders‟ salary type adjustments we would normally make to distribute that profit, but what the mechanism they had been adopting over the years,

and this had started before my time, was the drawings would come out, the profit that was there would be offset against the available losses from the Ready Mark entity, and then a credit would be transferred from John Grant‟s current account to Jill Grant‟s current account to compensate so that it never went into overdraft, so effectively instead of getting a salary credit you like to compensate for the drawings, there was basically a transfer of funds, or a credit from John Grant‟s personal account to Jill Grant‟s current account, so it came into credit.

[40]     Ms Grant asserts that the whole process was completely artificial.  She did not accept that the drawings debited to her were in fact received by her and in her affidavit challenged Mr Grant to prove that.  The money taken from the business was she said used to pay household expenses and for their holidays.

Considerations and conclusions

[41]     The facts are not really in dispute, rather it is the parties‟ respective view of

those which is in dispute.

[42]     The plaintiff bears the responsibility of satisfying the Court that Ms Grant has no arguable defence to  its claims.   In this case Ms Grant has filed a strikeout application in response, pleading that the plaintiff‟s claims are incapable of proof at all.

[43]     This Court is clearly of the view that the plaintiff cannot succeed with its claims and because the Court considers they are incapable of proof, it believes it is appropriate to strike those out.

[44]     The plaintiff has misunderstood the affect of the orders made by Judge Ryan. In ordering the payment of compensation in respect of Mr Grant‟s bundle of rights the learned Judge was ruling that those comprised relationship property for they concerned the disposition of property of the relationship to the control of one of the parties.  It was in the outcome of acknowledging and ruling upon that claim that the learned Judge then declared the property in that bundle of rights to be Mr Grants alone.

[45]     I have in paragraphs [6] – [9] inclusive herein referred to aspects of Judge

Ryan‟s  judgment.   In this Court‟s view it is clear that Judge Ryan considered Mr

McLoughlin‟s  approach to valuation was to adopt practical considerations rather than a concern for a precise calculation because after all the Court had two objectives in mind:

(a)      To  determine  whether  the  property  in  question  was  Mr  Grant‟s separate  property or  instead  was  property to  which  a  relationship property claim could properly be made.

(b)If the latter, then what was the value of that property for the purpose of making an award of half of it to Ms Grant.

[46]     In recognising Ms Grant‟s right of claim to that bundle of rights the learned Judge explained that he adopted a practical and realistic way of valuing it; one which recognised the practicalities of the circumstances and required a commonsense approach.

[47]     Judge Ryan adopted Mr McLoughlin‟s approach, Mr McLoughlin was the plaintiff‟s accountant.   Mr McLoughlin ascribed no value to the debt due by Ms Grant to the plaintiff in the same way he ascribed no value to the other and significantly larger debts due from entities in Mr Grant‟s control.   He said in the context   of  the  valuation   exercise   those   debts   should   be  considered   to   be irrecoverable, a conclusion clearly adopted by Judge Ryan in the outcome.

[48]     Therefore Ms Grant‟s debt to the plaintiff was valued for the purposes of fixing the value of a half share in Mr Grant‟s bundle of rights.  Likewise, the level of the  parties‟ respective  shareholders‟ accounts  was  also  taken  account  of  in  that valuation.

[49]     As  regards  those  accounts  the  queries  raised  by  Ms  Grant‟s  affidavit concerning the disparity between accounts she referred to, and the amounts claimed by the statement of claim have largely been ignored.  Totally ignored in Mr Grant‟s reply affidavit is her assertion that she did not received those funds debited to her account and she challenged Mr Grant to prove otherwise.

[50]     Her account is largely supported by Mr Leaning‟s evidence of transfer credits between the accounts of Mr and Ms Grant for business purposes rather than as a record of reality.

[51]     This Court accepts Ms Grant‟s statement that the claim for repayment of the shareholders‟ current account was premised upon a claim that she had drawn funds from the company which had not been repaid at the time of their separation.  It is appropriate at this time to recall also the note of Judge Ryan that the evidence indicated “an array of inter-entity advance accounts through which cash has been transferred as needs be over an extended period of time”.

[52]     I am certain Judge Ryan had those same thoughts in mind when he directed that there be an equal division of the Dovine Olives‟ sale proceeds, notwithstanding there was an imbalance of contributions in Ms Grants favour.

[53]     Clearly the issue concerning renovations and concerning the shareholders‟ accounts was before Judge Ryan but neither was directly addressed by his decision in the outcome.  With respect, nor should it have been.  Implicitly they were the subject of consideration by Mr McLoughlin‟s valuation and by Judge Ryan‟s adoption of same. There was no further need for separate consideration of those items.

[54]     Mr Grant‟s mistake is to believe that in the guise of his company the plaintiff, he is now able to pursue recovery of those items.   He cannot.   Nor can he draw support from the memorandum of Judge Ryan in response to Mr Grant‟s counsel‟s own memorandum.  If by that he expressed a view that the renovation debt was still due then with respect the learned Judge was not correct for the issue of that debt had already been dealt with by him when he accepted, and effectively ruled, it was of no value.  Were it otherwise then the value of debts owed by other entities of Mr Grant would also have been taken into account to produce a much greater value for the purpose of fixing a value of the payment due to Ms Grant.

[55]     As Mr McLoughlin had stated:

There is no suggestion that [Ms Grant] should repay that advance or that it should be taken into account in some way.

[56]     Mr Grant paid a lesser sum than otherwise he could have been liable for had the value of the shareholders‟ current accounts, or had Ms Grant‟s personal debt to the plaintiff assumed some value.  He did not, and in the circumstances it is not open to him via his company, the plaintiff, to try and retrieve from Ms Grant that which has been awarded to her.

[57]     Mr Grant is misconceived if he believes he can on the one hand be appearing for himself and not on behalf of his company, and at the same time on the other hand be  representing  his  company.    As  much  as  explained  by  his  counsel‟s reply memorandum to Judge Ryan following the issue of the learned Judgment.  It will be recorded in that that counsel reported that because of adjustments in the current account taken into account by Mr McLoughlin Mr Grant sought no further order in relation to the repayment of that money.

[58]     Counsel also recorded that Mr Grant now accepted that Ms Grant could retain the car as her separate property.

[59]     His  position  now is that  in  the first  acknowledgement  in  relation  to  the shareholders account he was speaking for himself and not for the plaintiff. Yet, quite clearly with respect to the car he was speaking as the plaintiff when he declared the plaintiff‟s car would be the property of Ms Grant.

[60]     If as the plaintiff contends Ms Grant is indebted to it for the renovations cost and for the shareholders‟ current account deficit then such debts were relationship debts under s20 PRA because they were was incurred in the course of a common enterprise carried on by Mr and Ms Grant for their benefit.   In that situation the Court was able to adjust the value of relationship property by deducting any relationship debts.  In this case Judge Ryan did not do that even though those aspects of  the  plaintiff‟s  claim  were  then  before  him,  and  obviously  because  of  his acceptance of advice that those debts were not repayable.

[61]     It is not now open to this Court to revisit that finding.

[62]     The plaintiff is clearly the privy of Mr Grant.  The Family Court concluded so.  The plaintiff is now bound by the consequences of the outcome of the Family Court decision affecting Mr Grant.

[63]     I accept Mr Vickerman‟s submission that in this case the plaintiff is, in this Court, seeking to vary the value of net assets of the trust without accounting to Ms Grant for any increase in the value of the bundle of rights.  This, counsel submits, would cut across the statutory equal division of property, including the bundle of rights, made by the Family Court.

[64]     I consider the plaintiff is estopped by the extended doctrine of res judicata from  arguing  this  claim  independently of the  Family Court‟s determination,  for otherwise it would permit a reopening of the same subject of litigation which ought to have been and was the subject of the Family Court contest.

[65]     Also  there  is  a  public  interest  consideration  to  prevent  in  relationship property disputes an ability of one party to give what it is bound to on the one hand and to prevent it in another guise from taking it back again.

[66]     I agree with Mr Vickerman‟s submission that what the plaintiff is attempting to do in its proceedings is to augment its value at the expense of Ms Grant to the sole benefit of her ex husband Mr Grant and thereby unsettle the distribution of family relationship property adjudicated upon in a Family Court.

[67]     More than having proved that she has an arguable defence to the plaintiff‟s summary judgment claims, the Court is satisfied Ms Grant has proved the plaintiff cannot succeed with its claims.

Judgment

[68]     The  summary  judgment  claims  are  dismissed  because  there  is  a  clearly arguable defence to them.  The Court is satisfied those claims cannot be proved and accordingly they will be struck out.

[69]     Costs will be fixed on a category 2B basis together with disbursements as

approved by the Registrar.

Associate Judge Christiansen