Round v Round

[2017] NZHC 428

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000804 [2017] NZHC 428

BETWEEN

ERIC CHARLES ROUND

Plaintiff

AND

MARTIN CHARLES ROUND Defendant

Hearing:	20-24 November 2016
Appearances:	G M Brodie for the plaintiff Defendant in person
Judgment:	14 March 2017

JUDGMENT OF PALMER J

This judgment is delivered by me on 14 March 2017 at 2 pm pursuant to r 11.5 of the High Court Rules.

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

Solicitors/Counsel:

G M Brodie, Barrister, Christchurch

Purnell Creighton, Christchurch

Defendant in person

M C Round, Christchurch

ROUND v ROUND [2017] NZHC 428 [14 March 2017]

Summary

[1]      Mr Eric Round is 94 years old.  In November 2012 he transferred ownership of his house to his youngest son, Mr Martin Round.  Martin had been living with his father from the middle of 2011, receiving $300 per week to take care of him.  Eric says  he transferred  the  house to  Martin  at  Martin’s  suggestion  because he  was frightened that, otherwise, Martin would leave him.  There is independent evidence Martin did threaten that. Since September 2015 Eric has been in a rest home because Martin could not cope with his father’s care. Martin appears to have spent most of his father’s savings.  Eric is now in debt and does not have enough money to meet the cost of his rest home.  Eric, through his oldest son Mr David Round exercising his power of attorney, wants his house and money back.

[2]      I find the house was transferred to Martin Round as a result of Martin’s undue influence on Eric and was an unconscionable bargain.  The transfer was not the result of the free exercise of the independent will of Eric.  Eric was vulnerable to Martin’s pressure.  I consider a middle-aged man or woman living with, and caring for, their elderly blind parent is a class of relationships that raises a presumption of trust and confidence.   I find Martin’s actions in arranging for his father to meet a lawyer of Martin’s choosing, with him present, to enter a transaction at Martin’s suggestion,  under  the  threat  that  Martin  would  otherwise  leave,  constitutes  the transfer as an unconscionable bargain.   I set aside the transaction and re-vest the Redcliffs home in Eric Round.

The factual context

The evidence at trial

[3]      Martin and David Round gave evidence and were cross-examined in court, as were other witnesses in relation to the substantive issues, namely:

(a)       Ms Monica Palmer, Eric’s carer, and Ms Heather McLean, a Nurse

Maude Support Worker;

(b)      Mrs Moira Lockington, Eric’s niece;

(c)       Ms Irene Gallagher and Mr Robert Gallagher, friends of Eric’s;

(d)      Mr Colin Peebles, a psychiatrist instructed by Eric; and

(e)       Mr Ian Scott, a solicitor who advised Eric on the property transfer.

Eric Round’s evidence

[4]      In  March  2016  Eric  Round  was  assessed  by Dr Simon Thomas  as  “not medically fit to appear in court to give evidence”.1     Both parties agreed Eric’s evidence would be given by way of affidavit, due to his frail health.   That was directed  by…