Smyth v Wadland - [2008] NZCA 578

IN THE COURT OF APPEAL OF NEW ZEALAND
CA398/07
[2008] NZCA 578
BETWEENLEE SMYTH

Appellant

ANDROYSTON WILLIAM WADLAND

Respondent

Hearing:16 September 2008

Court:Arnold, Potter and Harrison JJ
Counsel:J D Noble for Appellant

M K Macnab and J C W Green for Respondent

Judgment:22 December 2008 at 3.30 pm

JUDGMENT OF THE COURT

A         THE APPEAL IS DISMISSED.
B         AS TO COSTS, SEE [55] OF THE JUDGMENT.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]        Mr Lee Smyth appeals against the judgment of Frater J delivered in the High Court at Auckland on 16 July 2007, dismissing his claim for a declaration that Mr Royston Wadland held three residential properties in West Auckland as trustee for the interests of Mr Smyth and Ms Theresa Woodland, Mr Wadland’s daughter and Mr Smyth’s former partner.
[2]        Mr Smyth’s appeal raises a number of grounds which are principally challenges to the Judge’s findings of fact.
Background circumstances
[3]        The relevant facts are comprehensively set out in Frater J’s judgment and, for these introductory purposes, we need only summarise what is common ground and necessary for an understanding of the essential events. We shall deal with aspects of the facts more fully where appropriate when considering discrete grounds of appeal.
[4]        Mr Smyth purchased a 10 acre lifestyle block at 22 Te Aute Ridge, Bethells Beach and built a house there in 1990. At all relevant times the property was mortgaged to ANZ Banking Group Ltd. Ms Woodland started living with Mr Smyth at Te Aute Ridge in the late 1990s. Each had children from previous relationships. They later had two children together. Both derived their incomes principally from State benefits.
[5]        Ms Woodland owned her own house in Sunnyvale. She fell into default under her mortgage. The mortgagee sold Ms Woodland’s property after she moved to Te Aute Ridge.
[6]        Mr Smyth also defaulted under his mortgage to ANZ which issued a notice of intention to sell Te Aute Ridge in January 2002. Mr Smyth then owed the bank $250,000. Mr Wadland, who lives in England and had never previously met Mr Smyth, agreed to a request by Mr Smyth and his daughter to purchase Te Aute Ridge. Mr Smyth engaged an intermediary, Mr Martin Fuller, to bid for the property at the auction conducted by the mortgagee through Mr Fuller’s company, Edinburgh Construction Ltd. Mr Fuller, a mortgage broker, arranged a loan offer from Westpac Banking Corporation Ltd for $215,000 on the basis of the property having a value of $270,000. Edinburgh was successful at the auction with a bid of $260,000. Mr Wadland paid the deposit of $25,000 to ANZ.
[7]        Shortly after the auction Mr Smyth had the property re-valued. R A Purdy & Co, a registered valuer, valued it at $350,000. On this basis Westpac agreed to increase its loan offer to $280,000. In accordance with his prior arrangement with Mr Smyth and his daughter, Mr Wadland settled the purchase of the property instead of Edinburgh, 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 Smyth v Wadland

Details

AGLC: Smyth v Wadland [2008] NZCA 578
Case: [2008] NZCA 578
Decision Date: 22 December 2008

CaseChat Overview and Summary

Lee Smyth appeals against the judgment of the High Court dismissing his claim for a declaration that Royston Wadland held three residential properties in West Auckland as trustee for the interests of Smyth and Theresa Woodland. The Court of Appeal found that Smyth's appeal was without merit. The appeal raised a number of grounds which were principally challenges to the Judge's findings of fact. The first issue was whether the Judge erred in law by failing to recognise that Smyth's expectations of a beneficial interest in the properties were reasonable. The Court found that the Judge had not erred in law, and that the absence of Mr Wadland's agreement to recognise a proprietary interest in Smyth told against imposition of a constructive trust. The second issue was whether the Judge made factual errors when determining whether Smyth made a recognisable contribution to Wadland's acquisition of the three properties. The Court found that the Judge's findings were not wrong and that there was no causal link between Smyth's conduct and the subsequent sale to Wadland. The third issue was whether a constructive trust should have been imposed given Wadland's admission that if anything adverse happened he would not have left his daughter and Smyth without. The Court found that Wadland's concession of a discretion could not give rise to a present entitlement in the nature of a fixed contribution to property by Smyth. The Court dismissed Smyth's appeal against the judgment of the High Court.

Orders