Sen v Public Trust - [2022] NZHC 1776

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-48

[2022] NZHC 1776

BETWEEN
LATIKA DEVI SEN

Plaintiff

AND

PUBLIC TRUST

Defendant

AND

MICHAEL ALLAN FRIEND AND JUDITH LEIGH FRIEND

Interested Parties

Hearing: 30 May – 1 June 2022

Appearances:

L S Acland for the Plaintiff

J C Ironside and P J Bellamy for the Interested Parties

Judgment:

22 July 2022

JUDGMENT OF COOKE J

Table of Contents

The plaintiff’s claims

[5]

Contract [15]

Promissory estoppel [19]

Capacity [21]

Undue influence [34]

Unconscionability [42]

Conclusion [50]

[1] In March 2015 Mr Colin Friend, then aged 88, won $1 million in bonus bonds. Some three months later he purchased a house in Stoke near Nelson for $425,000. He then made a proposal to his friend, Mrs Latika Sen — if she and her family returned

SEN v PUBLIC TRUST [2022] NZHC 1776 [22 July 2022]

to Nelson from Wellington to resume providing him with friendship and care as they had previously when they lived in Nelson, they could live in the new house and it would become hers after his death. Latika agreed and on 18 June 2015 she signed the documents transferring ownership of the property into the names of Colin and Latika as joint tenants. Latika and her family then left Wellington and moved into the house in August 2015, and duly then provided Colin with the promised friendship and support.

[2] Shortly before his death less than a year later Colin’s family found out what had happened. They were providing him with the final care he needed in the period through to his death. Mr Michael and Ms Judith Friend were told by Colin what he had done. Colin also said that he had provided additional financial benefits to the Sen family. This turns out not to be true. In any event, Michael and Judith formed the view that Latika had taken advantage of Colin. After taking advice from Mr Tony Stallard, Michael Friend used his authority under a power of attorney to sever the joint tenancy so that Colin and Latika owned the property only as joint tenants, not tenants in common. This meant that on Colin’s death on 28 April 2016 only half the property passed to Latika.

[3] Latika now brings these proceedings advancing two causes of action — breach of contract and promissory estoppel. The Public Trust (acting as executor), but substantively Michael and Judith, defend the claim on the basis that Colin did not have capacity when entering the agreements under which Latika obtained the joint tenancy with Colin. They also say that in accordance with the principles of undue influence and unconscionability she is not entitled to that interest. Moreover they advance a counterclaim requiring the remaining half share held by Latika to be transferred to the Public Trust as executor, although in closing Mr Ironside for the family only advances the issues of unconscionability and undue influence as defences to Latika’s claim for…

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 Sen v Public Trust

Details

AGLC: Sen v Public Trust [2022] NZHC 1776
Case: [2022] NZHC 1776
Decision Date: 22 July 2022

CaseChat Overview and Summary

In Sen v Public Trust, Latika Devi Sen brought a claim against the Public Trust, acting as executor of Colin Friend's estate, and against Colin's children, Michael and Judith Friend, for full ownership of a house in Stoke, New Zealand. Colin had promised Latika that she and her family could live in the house and that it would become hers after his death, provided they provided him with care and companionship. Latika signed documents transferring ownership of the property into the names of Colin and Latika as joint tenants in June 2015. Colin died in April 2016, but before his death, Michael severed the joint tenancy using a power of attorney, meaning only half the property passed to Latika. Latika brought a claim for breach of contract and promissory estoppel, while the defendants raised defences of lack of capacity, undue influence, and unconscionability. The court found that there was a binding agreement between Latika and Colin, and the elements of promissory estoppel were satisfied. The court rejected the defences of lack of capacity, undue influence, and unconscionability, and upheld Latika's claim for full ownership of the property. The court ordered that the half share of the property currently held by the defendant be vested in the plaintiff. Costs were awarded to the plaintiff on a 2B basis.

Orders