Sayes v Tamatekapua - [2012] NZCA 524

IN THE COURT OF APPEAL OF NEW ZEALAND

CA181/2011
[2012] NZCA 524

BETWEEN GERRARD WENTWORTH SAYES
Appellant

AND PRUDENCE JANE TAMATEKAPUA
First Respondent

AND SHELLEY ANN SAYES
Second Respondent

AND JULIE BELLE GREER
Third Respondent

AND KENSINGTON SWAN
Fourth Respondent

AND WALTERS WILLIAMS & CO
Fifth Respondent

AND KENNETH JOHN CROSSON AND JOHN BEVAN
Sixth Respondents

AND NIGEL GREER AND MATTHEW CARSON
Seventh Respondents

AND COLIN JAMES WRIGHT
Eighth Respondent

AND MICHAEL WENTWORTH SAYES
Ninth Respondent

AND SAYES FAMILY TRUSTEE COMPANY LIMITED
Tenth Respondent

Hearing: 27 September 2012

Court: Hammond, Arnold and White JJ

Counsel: S H Barter for Appellant
No appearances for Respondents

Judgment: 9 November 2012 at 3.00 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThere is no order for costs, though the appellant must pay usual disbursements to the ninth respondent, if necessary as fixed by the Registrar.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Introduction

The issue on this appeal is whether, in terms of a deed of settlement, a property is to be transferred to the ninth respondent, Michael Sayes (Michael), or his nominee at a value that includes or excludes GST.
If the value is GST inclusive it will be $4,849,875. If, however, the value is GST exclusive it will be $4,311,000.
As the value is to be used in the calculation of Michael’s share in the estates of his late parents, he argues for the lower, GST exclusive value, while the appellant, Gerrard Sayes (Michael’s brother) argues for the higher, GST inclusive value.

Background

The issue arises in the context of ongoing disputes between the children of the late Beau and Peggy Sayes as to the distribution of the assets in their estates, in particular some fourteen properties, including 106 Holden’s Road, Clevedon, the property to be transferred to Michael or his nominee under the settlement deed.
Michael, who had been in occupation of the property for many years, was not registered for GST.
The settlement deed was originally entered into by all parties, other than Michael, in June 2008 after a judicial settlement conference. Michael, however, subsequently agreed to be bound by the settlement deed after the commencement of a High Court trial and consent orders made on 21 November 2008.
The relevant paragraphs of the settlement deed are:
9That the property at 106 Holden’s Road be transferred to Michael or his nominee or resettled on trust for the benefit of Michael’s children such transfer or resettlement being on account of his one quarter share of the properties set out in paragraph [8] herein. It shall be Michael’s sole election as to whom this transfer is made. Irrespective of the party to whom the transfer is made the value of the property shall be deducted from the balance due to Michael in ascertaining the balance due to him pursuant to this settlement. In the event that this clause has the effect of Michael exceeding his entitlement as set out in paragraph [8] any adjustment shall be paid…

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.

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Details

Case: [2012] NZCA 524
Decision Date: 9 November 2012

CaseChat Overview and Summary

In Sayes v Tamatekapua, the Court of Appeal of New Zealand addressed a dispute regarding the valuation of a property for the purposes of a settlement deed. The key issue was whether the property should be valued inclusive or exclusive of GST. The appellant, Gerrard Sayes, argued for the higher GST inclusive value of $4,849,875, while the ninth respondent, Michael Sayes, contended for the lower GST exclusive value of $4,311,000. This valuation was significant as it would determine Michael's share in the estates of his late parents, Beau and Peggy Sayes.

The legal issue at hand was the interpretation of the terms of the settlement deed, specifically clauses 15 and 16, which required the property to be valued at its "current market value" by a registered valuer. Clause 14 further stipulated that any tax or duty costs were to be shared equally among the four siblings. The High Court had previously ruled in favour of the GST exclusive valuation, a decision that Gerrard now appealed.

The Court of Appeal found that the straightforward interpretation of the settlement deed's terms mandated valuing the property at its "current market value," which, according to well-established principles, means the price at which a willing but not anxious vendor would sell and a willing but not anxious purchaser would buy. The Court held that the valuer, Seagar & Partners, had correctly valued the property at $4,311,000 exclusive of GST, and there was no evidence to suggest otherwise. The Court rejected Gerrard's arguments that the value should reflect his GST status or the potential for future tax advantages. The Court of Appeal concluded that the settlement deed's terms were clear and should be honoured, dismissing Gerrard's appeal.

The Court of Appeal dismissed the appeal, affirming the High Court's ruling that the property should be valued at $4,311,000 exclusive of GST. The Court also noted that Gerrard's claim for indemnity costs from the estates was moot, and there was no order for costs. However, Michael, who represented himself, was entitled to payment of usual disbursements from the appellant, if necessary as fixed by the Registrar.

Orders