Counsel: D A T Hollings QC and S L Robertson for Appellants
P J P Grace, P T Finnigan and A Henderson for First Respondents
N Till QC and H Twomey for Second to Fifth Respondents

Judgment: 14 May 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

A The appellants are granted leave to adduce further evidence.

B The appeal is allowed.

CThe fourth and fifth respondents are jointly and severally liable to the appellants for equitable compensation in the amount of $135,572, plus interest on that sum at the Judicature Act 1908 rates prevailing from 14 June 2001 until the date of payment.
DThe order for costs against the appellants in the High Court is quashed. Costs in that Court are to lie where they fell.
EThe fourth and fifth respondents are jointly and severally liable to pay the appellants costs for a standard appeal on a band B basis. We certify for two counsel.

REASONS OF THE COURT
(Given by Arnold J)

Table of Contents

Para No

Introduction  [1]
A family divides  [4]
High Court proceedings  [24]
Basis of appeal  [37]
Discussion  [40]
         Leave to bring an FPA claim out of time  [41]
         Claim based on Mr Bellamy’s conduct  [53]
         Costs  [75]
Decision  [80]

Introduction

This case concerns the division of the assets of a farming couple, Alan and Nola Walker, among their three children. The three children are the appellants, Diane Simpson and Pamela Brighouse, and the second respondent, Colin Walker. At the heart of the dispute is the fact that Colin received the family dairy farm and this, it is claimed, has resulted in a significant disparity in the distribution of the parents’ assets, to the manifest detriment of Diane and Pamela.
In the underlying proceeding, Diane and Pamela brought a variety of claims. First, they sought an extension of time to bring a claim under the Family Protection Act 1955 (FPA) against the first respondents as trustees of their mother Nola’s estate. Second, they claimed against their brother Colin on the basis that he owed them fiduciary duties, which he had breached. Third, they claimed against Colin and their father Alan on the basis that Alan did not have capacity to enter into certain inter vivos arrangements concerning the disposition of his property. Fourth, they brought claims against the fourth respondent, Mr Bellamy, who was the lawyer who handled the family’s affairs, for breach of fiduciary duty and negligence. Finally, they brought a claim against Mr Bellamy’s partners at…

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 Simpson v Walker

Details

AGLC: Simpson v Walker [2012] NZCA 191
Case: [2012] NZCA 191
Decision Date: 14 May 2012

CaseChat Overview and Summary

This case concerns the division of the assets of a farming couple, Alan and Nola Walker, among their three children, Diane Simpson, Pamela Brighouse, and Colin Walker. Diane and Pamela brought a variety of claims against their brother, Colin, and the lawyer who handled the family's affairs, Mr Bellamy, as well as his partners at the time. They sought an extension of time to bring a claim against Nola's estate under the Family Protection Act 1955 (FPA), claiming that Colin owed them fiduciary duties which he had breached, and that Alan did not have capacity to enter into certain inter vivos arrangements concerning the disposition of his property. They also brought claims against Mr Bellamy and his partners for breach of fiduciary duty and negligence. The High Court dismissed all of the appellants' claims. On appeal, the appellants pursued their application for an extension of time to bring a claim against Nola's estate under the FPA and their claims against Mr Bellamy and his partners. The court rejected the appellants' contention that Harrison J was wrong to refuse to grant them leave to bring an FPA claim out of time. Regarding the claims against Mr Bellamy, the court found that he breached his fiduciary duty of loyalty towards the appellants by not alerting them to the conflict of interest involved in the transactions and of the need to seek independent advice. The court awarded equitable compensation to Diane and Pamela in the amount of $135,572, together with interest on that sum at the Judicature Act 1908 rate from 14 June 2001. The court quashed the order for costs in the High Court and decided that costs in that Court should lie where they fell. In this Court, the fourth and fifth respondents were jointly and severally liable to pay costs to the appellants for a standard appeal on a band B basis.

Orders