Renner v Renner - [2014] NZHC 352

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2013-470-569 [2014] NZHC 352

BETWEEN IAN RODNEY RENNER Plaintiff

ANDCATHERINE MARY RENNER Defendant

Hearing: 17 February 2014

Appearances: D van Hout and G Elvin for Plaintiff
D P Weaver for Defendant

Judgment: 5 March 2014

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 5 March 2014 at 10:00am
pursuant to Rule 11.5 of the High Court Rules.

...................................
Registrar/Deputy Registrar

Solicitors:
MacKenzie Elvin, Tauranga, for Plaintiff
Lyon O’Neale Arnold Lawyers Ltd, Tauranga, for Defendant

RENNER v RENNER [2014] NZHC 352 [5 March 2014]

[1] In this summary judgment application Mr Renner sues his former wife for

$470,000 to equalise the payments they made to FM Custodians Ltd as guarantors. FM Custodians Ltd is a custodial company of Trustees Executors Ltd acting as trustee of NZ Mortgage Income Trust Group Investment Fund. It lent money to Heybridge Developments Ltd under a loan agreement of 25 July 2007. As security for the loan, FM Custodians Ltd had a first registered mortgage over Heybridge’s property at 166 Lochhead Road, Te Puna and a guarantee given by Ian Dustin and Mr and Mrs Renner, Heybridge’s directors and three of its shareholders. The guarantee contains terms typically used by financiers.

[2] The property at Lochhead Road was a 44 hectare rural lot. Heybridge had plans for its development, including subdividing into 14 lots, but these foundered in the resource consent process.

[3] The loan agreement provided that the funds advanced were repayable upon demand and pending demand they were repayable by 3 August 2010. Heybridge defaulted. On 19 April 2011 FM Custodians Ltd made demand on Heybridge for
$3,039,355.58 as the amount outstanding under the loan. It also made demand on the guarantors. Interest continued to accrue on the loan. FM Custodians Ltd filed proceedings in the Tauranga High Court against Heybridge and the guarantors, seeking payment of the amount that had fallen due under the loan agreement. It also issued notices under ss 119, 121 and 122 of the Property Law Act against Heybridge and the guarantors. It is common ground that neither the company nor the guarantors complied with the notices.

[4] There followed negotiations which resulted in Mr Renner and Mrs Renner entering into separate agreements with FM Custodians Ltd. Mr Renner’s agreement was in October 2011, Mrs Renner’s in April 2012. Each of them made payments under the guarantee. Mr Renner’s case is that he paid $1,320,000, Mrs Renner paid
$380,000. He claims $470,000 by way of contribution. It is common ground that Mr Dustin is insolvent. He is an undischarged bankrupt. No one looks to him for contribution.

[5] Mrs Renner raises three broad matters in opposition:

(a) Mr Renner has not properly accounted for benefits he received from

FM Custodians Ltd;

(b) Mr Renner has not made proper disclosure; and

(c) Under equitable principles Mr Renner is disqualified from obtaining contribution.

In addition she wishes to join FM Custodians Ltd as a third…

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 Renner v Renner

Details

AGLC: Renner v Renner [2014] NZHC 352
Case: [2014] NZHC 352
Decision Date: 5 March 2014

CaseChat Overview and Summary

The plaintiff, Ian Rodney Renner, sued his former wife, Catherine Mary Renner, for $470,000 to equalise the payments they made to FM Custodians Ltd as guarantors. The defendant raised several objections, including that the plaintiff had not properly accounted for benefits he received from FM Custodians Ltd, that the plaintiff had not made proper disclosure, and that the plaintiff was disqualified from obtaining contribution under equitable principles. The court found that the plaintiff had not satisfied the burden of proof on the summary judgment application, as it was arguable that FM Custodians Ltd sold the Lochhead Road property at an undervalue, and the plaintiff had not excluded the possibility that he received collateral benefits from FM Custodians Ltd and that he negotiated the price of Lochhead Road so as to increase his contribution claim against the defendant. The court also found that the defendant did not have an argument that the plaintiff was not entitled to claim contribution from her. The court dismissed the application for summary judgment, reserved costs, and directed the case officer to arrange a case management conference for further case management directions, including amending pleadings, joining third parties, discovery, and setting down directions. The plaintiff was to file and serve a memorandum five working days before the conference, and the defendant two working days.

Orders