Shephard v Rabson - [2014] NZHC 2371

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-36 [2014] NZHC 2371

BETWEEN
IAIN BRUCE SHEPHARD AND

CHRISTINE MARGARET DUNPHY Plaintiffs

AND

MALCOLM EDWARD RABSON First Defendant

AND

MALCOLM EDWARD RABSON AND RICHARD JOHN CRESER

Second Defendant

AND

WAYNE SEYMOUR CHAPMAN Third Defendant

Hearing: 17 July 2014

Counsel:

H Thompson for Plaintiffs
M E Rabson in Person
R J Creser in Person
B J Maltby for Third Defendant

Judgment:

26 September 2014

JUDGMENT OF ASSOCIATE JUDGE SMITH

Introduction

[1] The second defendants, Mr Rabson and Mr Creser, apply for summary judgment on certain claims brought against them by the plaintiffs. They say they have a complete answer to those claims, and that they should not be required to go to trial on them.

[2] The background of the application is as follows.

[3] The plaintiffs are the liquidators of companies called Vision Ltd (in liquidation) and Double Zero Holdings (in liquidation).

IAIN BRUCE SHEPHARD AND CHRISTINE MARGARET DUNPHY v MALCOLM EDWARD RABSON [2014] NZHC 2371 [26 September 2014]

[4] Mr Rabson was adjudicated bankrupt on 18 March 2013, but by deed dated

18 November 2013 the plaintiffs took an assignment from the Official Assignee of all claims and causes of action held by the Official Assignee as assignee of Mr Rabson’s estate. The plaintiffs say that Mr Rabson (in his personal capacity) has valid claims against a trust called the Malcolm Rabson Family Trust (the MRFT), which they are entitled to pursue under the assignment.

[5] Mr Rabson and Mr Creser are the current trustees of the MRFT.

[6] The plaintiffs rely on three deeds of acknowledgement signed in 2003 by the then-trustees of the MRFT, in support of a claim that the MRFT then owed Mr Rabson $675,750. The 2003 deeds of acknowledgement are said to represent three separate advances made by Mr Rabson to the trustees of the MRFT, which were made to enable the MRFT to purchase three residential properties. The plaintiffs say that the debts were repayable on demand.

[7] In January and February 2003 Mr Rabson is said to have made further advances to the MRFT, totalling $250,001.16. These advances are also said to have been repayable on demand.

[8] A further deed of acknowledgment of debt was signed by the then-trustees of the MRFT on 29 September 2004. In this deed, the trustees acknowledged their indebtedness to Mr Rabson and to his former de facto partner, Ms Gallagher, in an additional sum of $342,753. That debt is said to be owed by the trustees of the MRFT to Mr Rabson and Ms Gallagher as tenants in common in equal shares. The plaintiffs say that some of this amount has been repaid, but there is a balance of
$163,331 still owing by the MRFT to Mr Rabson. This debt is also said to be repayable on demand.

[9] The plaintiffs commenced this court proceeding in December 2013, claiming from Mr Rabson in his capacity as a trustee of the MRFT the total sum of

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 Shephard v Rabson

Details

AGLC: Shephard v Rabson [2014] NZHC 2371
Case: [2014] NZHC 2371
Decision Date: 26 September 2014

CaseChat Overview and Summary

The case of Shephard v Rabson was heard in the High Court of New Zealand, Wellington Registry, involving the liquidators of Vision Ltd and Double Zero Holdings as plaintiffs against Malcolm Rabson and Richard Creser as trustees of the Malcolm Rabson Family Trust (MRFT). The plaintiffs claimed that Rabson, as a trustee, owed money to the MRFT, which they, as liquidators, could pursue. They sought repayment of debts they claimed Rabson was owed by the MRFT, totaling approximately $1.1 million. The defendants, Rabson and Creser, applied for summary judgment, arguing that they had a complete defense and that no relief was sought against them. The court considered whether the MRFT trustees were properly joined in the proceeding and whether the defendants had shown a complete defense to the claims.

The court concluded that the MRFT trustees were indeed proper parties to the proceeding as they were interested in the relief sought by the plaintiffs. Regarding the defense, the court found that the defendants had not provided sufficient evidence to support their claim of full repayment. The defendants argued that numerous payments had been made from the MRFT to Rabson, but the court noted the lack of documentation and formal records to support these claims. The absence of clear evidence and the improbability of Rabson overlooking significant payments meant that the case was not suitable for summary judgment. The application for summary judgment was thus refused, and the costs of the application were reserved.

Orders