Smith v Ball

[2020] NZHC 1976

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2268

[2020] NZHC 1976

IN THE MATTER

of the Estate of RAYMOND ALEXANDER SMITH

BETWEEN

SAHRA LING SMITH

Plaintiff

AND

ROGER NEVILLE BALL

First Defendant

CRYSTAL MINT DEVELOPMENTS LIMITED

Second Defendant

CRYSTAL MINT LIMITED

Third Defendant

Hearing:	On the papers
Judgment:	10 August 2020

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me

on 10 August 2020 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Kevin McDonald & Associates, Auckland Copy To:  First Defendant

SMITH v BALL [2020] NZHC 1976 [10 August 2020]

Introduction

[1]                This is an application by the plaintiff, Sahra Smith, for costs. The application follows my judgment of 8 May 2020, which made a declaration that certain properties were held by the second defendant, Crystal Mint Developments Ltd (CMDL), on an express trust for Ms Smith. I made an order for transfer of those properties to her as executrix of her late father’s estate and other related orders.1

[2]The application for costs is opposed by the defendants.

Background

[3]                Ms Smith pursued eight causes of action against the defendants in relation to three residential units at 38 Dominion Street, Takapuna. Her father once owned the entire property and, in November 1993, entered into an agreement to sell it to CMDL, a company associated with the first defendant, Roger Ball. Mr Ball is the sole director of CMDL. CMDL’s shareholder is the third defendant, Crystal Mint Ltd (CML), and Mr Ball is the sole director and shareholder of CML.

[4]                The first cause of action, on which Ms Smith was successful, was that CMDL held the three units at 38 Dominion Street, Takapuna, under an express trust for her father (and so for Ms Smith, in her capacity as the executrix of her father’s estate). I determined that were it necessary, I would have found in favour of Ms Smith on two alternative causes of action alleging CML held the shares in CMDL in an express trust or that a constructive trust arose in relation to the property or the shares in CMDL.

[5]                Four other causes of action failed. Two of those causes of action were against Mr Ball personally and two, brought in the alternative to the claims against Mr Ball, were against CMDL. It was alleged that Mr Ball, acting under an enduring power of attorney for Ms Smith’s father, who had suffered a series of strokes, had transferred money from Mr Smith’s bank account to CMDL’S bank account. The funds were used to pay down debt on the properties. Mr Smith therefore did not lose the benefit

1      Smith v Ball [2020] NZHC 944.

of those funds, as the property was held by CMDL under an express trust for Mr Smith. The eighth cause of action, alleging an illegal contract, was abandoned at the hearing.

[6]                The defendants denied all the allegations.…