Robb v James - [2014] NZCA 42

IN THE COURT OF APPEAL OF NEW ZEALAND

CA472/2011
[2014] NZCA 42

BETWEEN

JAMES IVAN ROBB and EULALIE RATA ROBB
First Appellants

GARY WILLIAM ROBB
Second Appellant

AND

SHAUN DAVID JAMES
First Respondent

BLUE COD INVESTMENTS LIMITED
Second Respondent

Hearing:	19 February 2014
Court:	Wild, Miller and Dobson JJ
Counsel:	M J Wallace for Appellants J E Bayley for Respondents
Judgment:	19 February 2014 at 11.40 am
Reasons:	28 February 2014 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.

BThe appellants are to pay the respondents’ costs for a standard appeal on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

This is an appeal from a decision of French J ordering rectification of an agreement for sale and purchase (ASP) in respect of a seaside residential property near Kaikoura (the property).[1] To effect meaningful relief, the judgment also imposed a constructive trust in respect of land that ought to have been transferred to the respondents as purchasers under the ASP, but had instead been transferred by the first appellants (Mr and Mrs Robb) to the second appellant who is their son (Gary). Gary was ordered to transfer the land to the respondents.
[1]James v Robb HC Christchurch CIV-2009-406-266, 11 July 2011.
At the conclusion of the hearing the Court dismissed the appeal, with reasons to follow. We now provide those reasons.

The facts

Mr and Mrs Robb lived for many years at the coastal property which adjoins the sea at Kie Kie Bay, Kaikoura.[2] At that point, State Highway One adjoins the foreshore, with the railway line running on the inland side of the highway. Mr and Mrs Robb’s property was immediately inland from the railway line, with access to it gained by way of an easement over the railway line. Behind the house and garage on the property the land rises steeply and is apparently entirely covered in bush. A part of the property closest to the railway line was held on long-term lease from the relevant New Zealand Rail property-owning entity (the Railways lease) and the balance was freehold.
[2]One map appeared to describe the location as Goose Bay.
By late 2006 Mr and Mrs Robb had decided to sell the property and move into a rest home. Gary placed a for sale sign in the window of the house. On 4 December 2006, the first respondent (Mr James) saw the sign, knocked on the front door of the house, and had a discussion with Mrs Robb for approximately half an hour.
Mr James’ evidence was that Mrs Robb told him that she and her husband were selling everything to move into Kaikoura for health reasons. She described the property as including the four bedroom house and the land behind the house that went down to a creek on one side and up the hill into the bush behind. Mrs Robb said she did not know exactly how far up the hill the boundary was, but…

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 Robb v James

Details

AGLC: Robb v James [2014] NZCA 42
Case: [2014] NZCA 42
Decision Date: 19 February 2014 at 11.40 am

CaseChat Overview and Summary

In Robb v James, the Court of Appeal was asked to consider the rectification of an agreement for sale and purchase (ASP) of residential property at Kaikoura. The original ASP did not reflect the common intention of the parties as to the extent of the property to be sold. The appeal was brought by Mr and Mrs Robb and their son Gary, who was the intended recipient of the property that was omitted from the ASP. The Court dismissed the appeal and upheld the order for rectification. The Court also confirmed the imposition of a constructive trust over the omitted property in favour of the purchaser. The appeal raised issues as to whether the parties had shared a common intention as to the property to be sold, whether the purchaser's delay in seeking rectification should deprive him of relief, and whether the imposition of a constructive trust was appropriate. The Court found that the common intention was established, the delay was not sufficient to deprive the purchaser of relief, and the imposition of a constructive trust was justified. The Court held that the ASP did not reflect the common intention of the parties as to the extent of the property to be sold. The Court found that the evidence of a common intention to transfer the lost land was convincing. The Court also found that the delay in pursuing rectification did not deprive the purchaser of relief. The Court held that the delay was inordinate, but it did not have a determinative effect. The Court found that the purchaser had protested at the exclusion of the lost land from the time he was on notice about it, and there were circumstances that constituted at least a partial explanation for the delay in seeking rectification. The Court held that the imposition of a constructive trust over the lost land in favour of the purchaser was justified. The Court held that Gary acquired the lost land from his parents in circumstances where all of them were on notice of the equitable interest in that land created for the purchaser and his nominated entity by the circumstances surrounding the inadequately documented ASP. The Court held that those were entirely appropriate circumstances in which to impose obligations on Gary as trustee of a constructive trust for the benefit of the purchaser and his nominated entity. The Court held that the form of relief ordered was entirely appropriate and followed conventional application of the use to be made of a constructive trust. The Court ordered that the appellants pay the respondents’ costs for a standard appeal on a band A basis with usual disbursements.

Orders