Stokes v Insight Legal Trustee Company Limited
[2014] NZHC 543
•21 March 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-1317 [2014] NZHC 543
BETWEEN BRYAN JAMES STOKES, ALEXANDRA MARY STOKES and OWEN NEIL WILLIAMS as trustees of the STOKES FAMILY TRUST
Plaintiffs
ANDINSIGHT LEGAL TRUSTEE COMPANY LIMITED and GRAHAM KEITH HEENAN as trustees of the RM COLEBROOK FAMILY TRUST
First Defendants
ANDELAINE MARGARET COLEBOOK Second Defendant
Hearing: 11 - 14 November 2013
Appearances: A J Steele and J P Scott for Plaintiffs
M J McCartney QC and R D Hindle for Defendants
Judgment: 21 March 2014
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 21 March 2014 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Martelli McKegg, Auckland
Insight Legal, Auckland
Counsel: M J McCartney QC, Auckland
R D Hindle, Auckland
STOKES v INSIGHT LEGAL TRUSTEE COMPANY LTD [2014] NZHC 543 [21 March 2014]
[1] The Plaintiffs (“vendors”) seek a declaration that they are entitled to subrogate to a right of indemnity that they contend is vested in the Second Defendant (“Mrs Colebrook”). The right of indemnity, if it arises, is against the assets of the R M Colebrook Family Trust (“RMCFT”). The First Defendants are the trustees of the RMCFT.
[2] Mrs Colebrook is liable to the vendors for an amount that is not less than
$943,033.36. The vendors’ case is that Mrs Colebrook, a former trustee of the RMCFT, has a right of indemnity in respect of that amount from the assets of the RMCFT, that such right of indemnity gives rise to a lien in Mrs Colebrook’s favour against those assets, and that the vendors are entitled to subrogate to Mrs Colebrook’s lien.
[3] The Defendants’ case is that Mrs Colebrook does not have a right of indemnity, for two reasons. First, the Defendants contend that Mrs Colebrook did not incur liability to the vendors in the exercise of her powers as a trustee of the RMCFT. Secondly, and if they fail on the first point, the Defendants contend that Mrs Colebrook is not entitled to indemnity because she incurred the liability to the vendors “improperly”.
Background
[4] By agreement for sale and purchase dated 31 August 2007, the vendors agreed to sell a residential property situated in Bucklands Beach Road, Auckland to “E M Colebrook or nominee” (that is, to Mrs Colebrook) for a purchase price of
$1.8 million (“Bucklands agreement” and “Bucklands property”).
[5] The Bucklands agreement was to settle on 20 December 2007. Mrs Colebrook did not settle. The vendors cancelled the Bucklands agreement on
30 January 2008 and Mrs Colebrook forfeited the deposit of $90,000 that she had paid. The vendors subsequently resold the property for substantially less than
$1.8 million. In July 2010, the vendors obtained judgment against Mrs Colebrook for the shortfall of $943,033.36. Mrs Colebrook is insolvent and has not paid the sum due.
[6] After obtaining judgment, the vendors learned that Mrs Colebrook was a trustee of the RMCFT when she executed the Bucklands agreement. The vendors then brought these proceedings, seeking to recover the sum due from the First Defendants.
[7] The vendors obtained judgment before Ellis J in the High Court.1 It is not necessary for me to discuss the vendors’ case before Ellis J in detail save to say that Ellis J found as a fact that Mrs Colebrook executed the Bucklands agreement, intending to bind the trustees of the RMCFT to the same. This finding is important to the issues that I am required to determine and I refer to it as the “High Court finding”.
[8] The Defendants appealed to the Court of Appeal.2 Before the Court of Appeal the vendors sought to support Ellis J’s judgment on a different ground, namely that, as a trustee of the RMCFT, Mrs Colebrook was entitled to be indemnified from the assets of the RMCFT and that they, the vendors, were entitled to subrogate to that right of indemnity. The vendors had not advanced this ground before Ellis J.
[9] To make out this case before the Court of Appeal, the vendors relied first on the High Court finding. The vendors were then required to establish that Mrs Colebrook’s fellow trustee (and Mrs Colebrook’s sister), Mrs Shona Carr, had subsequently agreed to the acquisition of the Bucklands property as an asset for the RMCFT – essentially that Mrs Carr accepted a nomination to her and Mrs Colebrook as trustees of the RMCFT. If such agreement or consent were established, on the face of it, the trustees would be entitled to indemnity from the assets of the RMCFT in respect of any liability they incurred to the vendors. The vendors would then be entitled to subrogate.
[10] The Court of Appeal upheld the High Court finding but remitted the case back to the High Court for determination of the following issues which Ellis J had
not been required to determine:
1 Stokes v Insight Legal Trustee Company Ltd [2012] NZHC 1822.
2 Insight Legal Trustee Company Ltd v Stokes [2013] NZCA 148; (2013) 14 NZCPR 118.
(a) whether Mrs Carr consented to the acquisition of the Bucklands property for the benefit of the RMCFT; and
(b)if so, whether the conduct of Mrs Colebrook and Mrs Carr disentitled them to indemnity from the assets of the RMCFT. The Defendants’ case is that they were not entitled to indemnity on the basis that omissions on their part meant the liability was not “properly” incurred.
[11] In addition to those two issues, the Defendants have alleged an affirmative defence, namely that the vendors failed to mitigate their loss.
[12] I did not hear argument in respect of s 24 Property Law Act 2007 and the extent to which it might be relevant. In any event, it is unnecessary for me to consider the matter because the vendors have not persuaded me that Mrs Carr gave her consent to the acquisition of the Bucklands property for the benefit of the RMCFT. That is sufficient to dispose of the vendors’ claim. It follows that I am not required to determine any other issue in the proceeding.
[13] I record that the Defendants sought to revisit the High Court finding before me. It was not open to them to do so.
Evidence
[14] For the vendors, I heard evidence from Bryan Stokes and Alexandra Stokes, two of the vendors. For the Defendants I heard evidence from Mrs Colebrook (now Mrs Heenan); Mrs Carr; Mr Bruce Patten, a mortgage broker; Mr Gordon Mackay, Mr John Gray, Ms S Neale and Ms G Thorburn, all of, or formerly of, Insight Legal (“Insight”); and Mr Brian Bramwell, an accountant. Mr Grahame Heenan (Mrs Colebrook’s husband) gave evidence before Ellis J but was not called to give evidence in the trial before me. I record also that the common bundle of documents included evidence that was not before Ellis J or before the Court of Appeal. I am satisfied that the new evidence does not affect the High Court finding.
Relevant facts
[15] Mrs Colebrook and Mr Ross Colebrook (that is, R M Colebrook) were married in 1979. They separated in 2002. Following the separation, Mrs Colebrook established a relationship with Mr Heenan. Mrs Colebrook and Mr Heenan married in 2010. In the interests of simplicity I shall refer to Mrs Heenan as Mrs Colebrook.
[16] The RMCFT was settled on 1 September 1994. The first trustees were Mrs Colebrook, Mrs Carr and Mr Allen Leonard Colebrook, Ross Colebrook’s father. The beneficiaries of the RMCFT were/are Mrs Colebrook, her children, and their children if any. The trustees of the RMCFT have power to purchase and hold real property.3
[17] Following Mr and Mrs Colebrook’s separation, Mr A L Colebrook retired as a trustee and Mr Carl Gruebner, an accountant, was appointed in his place. Mr Gruebner retired as a trustee prior to the events material to this proceeding. Mrs Colebrook and Mrs Carr were the trustees of the RMCFT as at the date of the Bucklands agreement.
[18] Mrs Colebrook’s evidence was that the RMCFT’s principal activity was to
invest in what she described as “rental properties”. Mrs Colebrook gave evidence of
15 such properties that the trustees owned, or had previously owned, for the benefit of the RMCFT.
[19] The trustees of the RMCFT owned a property situated at 118 Clovelly Road, Bucklands Beach (“Clovelly Road”). This had been Mr and Mrs Colebrook’s matrimonial home. Prior to Mr and Mrs Colebrook’s separation, the trustees of the RMCFT owned a half share in Clovelly Road, with the other half share being owned by the trustees of a separate trust, the E M Colebrook Family Trust.
[20] Following the separation, the trustees of the E M Colebrook Family Trust transferred their one half share in Clovelly Road to the trustees of the RMCFT. At
3 Deed of Settlement of the R M Colebrook Family Trust dated 1 September 1994, at cl 25(h).
all material times the title to Clovelly Road was in the names of Mrs Colebrook, Mrs Carr and Mr Gruebner.
[21] In December 2006, the trustees of the RMCFT entered into an unconditional agreement for the sale of Clovelly Road to Leftus Trading Limited (“Leftus”) for
$1,917,500.4 Settlement was to take place on 20 December 2007.
[22] In 2007 Mrs Colebrook and Mr Heenan were dividing their time between Pauanui and Fiji. Mrs Colebrook’s evidence was that she and Mr Heenan visited the Bucklands property in the course of looking for a home in which they could live in Auckland.5 Mrs Colebrook executed the Bucklands agreement on or about
31 August 2007, whilst she was in Fiji.
[23] Mrs Colebrook’s evidence was that she chose 20 December 2007 as the settlement date for the Bucklands agreement to coincide with the settlement of the sale of Clovelly Road. Her evidence was that, as at 31 August 2007, the trustees of the RMCFT owed her more than $240,000, that she expected the trustees to repay that debt from the proceeds of the sale of Clovelly Road, and that she intended to apply those funds to the purchase of the Bucklands property. The financial statements for the RMCFT for the year ended 31 March 2008 record a liability to
Mrs Colebrook in the amount of $184,049.6
[24] Mrs Colebrook paid a deposit of $90,000 under the Bucklands agreement on
7 September 2007. The vendors rely on the circumstances in which Mrs Colebrook borrowed funds to pay the amount of the deposit and I refer to those circumstances in more detail below.
[25] Mrs Colebrook took no steps to arrange finance for the purchase of the Bucklands property. I am satisfied that she intended that the proceeds of the sale of Clovelly Road would be applied to pay the purchase price due under the Bucklands
agreement.
4 Notes of Evidence of E M Heenan given on 12 November 2013, at 55.
5 Brief of Evidence of E M Heenan dated 30 October 2013, at [11].
6 R M Colebrook Family Trust Financial Accounts dated 31 March 2008, at CB 114.
[26] Mrs Colebrook instructed Insight to act for the trustees on the sale of Clovelly Road and to act on the purchase of the Bucklands property. Insight were Mr Heenan’s solicitors. Two legal executives at Insight had the day to day conduct of the sale and purchase files. The first legal executive to deal with the files was Ms Neale. Ms Neale ceased to be employed by Insight on 30 November 2007, after which the files were transferred to Mrs Thorburn. Mrs Thorburn ceased to be employed by Insight at Christmas 2007. The vendors rely on contemporaneous conveyancing documents prepared by Insight to support their case.
[27] The sale of Clovelly Road did not settle on 20 December 2007 or at all. Insight were informed on or about 18 December 2007 that Leftus would not be able to settle.
[28] The Bucklands agreement did not settle on 20 December 2007. The vendor served a settlement notice on 21 December 2007. As I have said, the vendors cancelled the agreement on 30 January 2008.
Did Mrs Carr give the necessary assent?
[29] I turn now to consider whether the vendors have established on the evidence that Mrs Carr assented to the Bucklands property being acquired as an asset of the RMCFT.
[30] In their evidence, Mrs Colebrook and Mrs Carr each denied that Mrs Carr had done so.
[31] Mrs Carr said that she was not asked to agree to the acquisition in her capacity as a trustee of the RMCFT, that the issue of the trustees of the RMCFT taking title was not discussed and that she had never agreed that the trustees would take such title. To the extent that the trustees made offers to purchase after cancellation (which they did), Mrs Carr said those offers were something of a “rescue mission” for Mrs Colebrook.
[32] Mrs Carr’s evidence was that the primary activity of the RMCFT was to
acquire rental properties, to be held for the benefit of the beneficiaries and
particularly Mrs Colebrook’s children. The Bucklands property was to be a relationship home for Mrs Colebrook and Mr Heenan. It did not meet the investment criteria of the trustees of the RMCFT.7
[33] It was put to Mrs Carr that Clovelly Road did not meet the description of a “rental property”. It was a valuable property that had been Mr and Mrs Colebrook’s matrimonial home. Mrs Carr’s evidence was that, post separation, the trustees had let Clovelly Road for $500 per week. That return did not justify the retention of Clovelly Road, hence the sale. Mrs Carr expressed some reservations as to whether the sale of Clovelly Road would settle, given the lengthy period to settlement, being some 12 months. If it did settle, however, Mrs Carr’s evidence was that she intended that the proceeds of the sale of Clovelly Road would be applied so as to repay the trustees’ debt to Mrs Colebrook, with the balance to be used to acquire two or three
properties of a lesser value, say $500,000 each, suitable for renting to third parties.8
[34] Mrs Carr’s evidence is that she learned of the proposed purchase of the Bucklands property in early September 2007 from her mother, Mrs Anderson, who told her that Mrs Colebrook proposed to acquire the property to live in with Mr Heenan.9 Mrs Carr said Mrs Colebrook subsequently called her and asked her to agree to provide security for an advance from New Zealand Home Bonds Limited (“NZHB”) to Mrs Colebrook for payment of the deposit due under the Bucklands agreement, as to which see below. Mrs Carr said that she agreed to do so, given the amount of the trustees’ debt to Mrs Colebrook.10
[35] Mrs Carr’s evidence was that she and Mrs Colebrook did not discuss how Mrs Colebrook intended to finance the purchase of the Bucklands property. Mrs Carr said that her previous experience had been that, if Mrs Colebrook wished to purchase a property for the RMCFT, she invariably discussed the matter with Mrs Carr and obtained Mrs Carr’s agreement, before executing an agreement for sale
and purchase. As for financing, Mrs Carr said that it was not uncommon for
7 Notes of Evidence of S M Carr given on 13 November 2013, at 231.
8 At 214.
9 Brief of Evidence of S M Carr dated 30 October 2013, at [10].10 At [11].
Mrs Colebrook to telephone very close to settlement and ask Mrs Carr to sign a loan agreement, memorandum of mortgage and the like.11
[36] Mrs Carr also gave evidence that Mrs Colebrook had raised the possibility of settling a new trust to be the purchasing entity and that Mrs Carr had agreed to be a trustee of the same if Mrs Colebrook wished.
[37] Mrs Carr did not rule out the possibility that, had she been asked, she might have agreed to the trustees of the RMCFT making a loan to Mrs Colebrook of part or all of the purchase price so that Mrs Colebrook could complete the purchase.12
Vendors’ submissions
[38] The vendors submit that the Court should not accept Mrs Carr’s evidence and that it is open to the Court to infer from the following evidence that Mrs Carr gave her assent to the Bucklands property being acquired as an asset for the RMCFT.
Application to NZHB
[39] First, the vendors rely upon the circumstances in which Mrs Colebrook borrowed the funds required to pay the deposit due under the Bucklands agreement.
[40] The Bucklands agreement was conditional on the purchaser:
… being able to arrange 5% of purchase price as a deposit before Friday 7
September 2007.
[41] Five per cent of the purchase price was $90,000.
[42] Mrs Colebrook engaged Mr Bruce Patten of “The Loan Market” to apply to NZHB for a loan of $90,000. On 31 August 2007, Mr Patten wrote to Mrs Colebrook and Mr Heenan with the form that NZHB required to be completed
(“NZHB application form”). In his letter, Mr Patten said:
11 Notes of Evidence of S M Carr, above n 7, at 209 and 211.
12 At 247.
As your existing property is in the name of a Trust the application form needs to be completed in the name of the trust (which I believe is just in Elaine’s Trust).
[43] Mrs Colebrook’s evidence was that she had no property in her own name, that NZHB would not advance funds without security, and that she asked Mrs Carr to agree to provide security for the advance, which Mrs Carr did.13
[44] The applicants shown on the NZHB application form were Mrs Colebrook and the RMCFT. The NZHB application form supplied the address of Clovelly Road property as the:
Address of property(s) already owned by Applicants (“the Property”) in which equity is declared if other than the residential address of Applicant #1. All the registered proprietors of this/these property(s) must sign this document.
[45] Mrs Colebrook and Mrs Carr signed the NZHB application form as applicants and initialled every page. NZHB approved the application, advanced the funds by paying the same to the real estate agent concerned, and lodged a caveat against the title to Clovelly Road.
[46] Mrs Colebrook’s and Mrs Carr’s evidence was that the RMCFT was only shown as an applicant for the loan because NZHB required security for the advance. That evidence is consistent with Mr Patten’s covering letter and the terms of the NZHB application form.
[47] Mr Bramwell, the accountant who prepared the financial statements for the RMCFT, gave evidence that the accounts of the RMCFT did not record NZHB’s loan as an advance to the trustees.
[48] Mr Patten’s evidence was that he did not charge a commission on the advance from NZHB. Mr Patten said it was not his practice to do so, particularly if there was
a prospect he would obtain instructions to arrange finance for the purchase.
13 Brief of Evidence of E M Heenan, above n 5, at [18].
Mr Patten’s evidence was that Mrs Colebrook and Mr Heenan had raised that matter with him.14
[49] I am not able to infer that Mrs Carr assented to the acquisition of the Bucklands property on the basis of her execution of the NZHB application form. Her execution is equally consistent with her agreeing that the trustees of the RMCFT should give security for NZHB’s advance to Mrs Colebrook.
Conveyancing documents
[50] Secondly, the vendors rely on contemporaneous conveyancing documents that Insight prepared in respect of the sale of Clovelly Road and the purchase of the Bucklands property.
[51] All of these documents were prepared by Mrs Thorburn. Mrs Thorburn could recall little, if anything, of the transaction when she gave evidence.
[52] The documents on which the vendors rely are Authority and Instruction forms (“A & I forms”) in respect of the sale of Clovelly Road and the purchase of the Bucklands property; draft statements to clients on each transaction; and a draft notice of change of ownership in respect of the purchase of the Bucklands property.
[53] Each of these documents referred to, or were addressed to, the “E M Colebrook Trust”. There was no such trust. The gist of the vendors’ submissions was as follows. Any reference to the E M Colebrook Trust in the context of the sale of Clovelly Road was incorrect. The references should have been to the RMCFT. From that it must follow that references to the E M Colebrook Trust on the documents in respect of the purchase of the Bucklands property must likewise be read as a reference to the RMCFT and must reflect the fact that at some point Mrs Carr had given the necessary consent to the acquisition.
[54] I do not accept that submission. I am not able to infer on the basis of an error on the sale documentation that Mrs Carr had given the necessary consent and indeed
to do so would be contrary to Mrs Thorburn’s evidence.
14 Notes of Evidence of B L Patten given on 13 November 2013, at 170.
[55] In my view, and on the basis of Mrs Thorburn’s evidence, the references in the documents to the E M Colebrook Trust originated from the cover of Insight’s physical file on the sale of Clovelly Road. The front cover of the file recorded that Insight’s client was the “E M Colebrook Trust”.15 Mrs Neale’s evidence was that she wrote “E M Colebrook Trust” on the outside of Insight’s sale file, but could not now say why she had done so. Mrs Neale’s evidence was that she believed the sale was a
quite separate transaction to the purchase, and that she had not understood that the proceeds of the sale of Clovelly Road were to be applied to the purchase of the Bucklands property.
A & I forms
[56] There are two pages to an A & I form. The first records the name(s) of the clients and describes the nature of the dealings – sale, purchase, mortgage, discharge of mortgage and so on. On the second page the client(s) authorises and instructs the relevant law firm on matters relating to the transaction by signing the same. Mrs Thorburn prepared the A & I forms.
[57] The names of the clients recorded on the first page of the A & I form in respect of the sale of Clovelly Road were Mrs Colebrook, Mrs Carr and Mr Greubner “as Trustees of E M Colebrook Trust”.16 As the vendors submitted this is an obvious error.
[58] The front page of the A & I form for the purchase of the Bucklands property recorded the clients as Mrs Colebrook and Mrs Carr, also “as Trustees of E M Colebrook Trust”.17
[59] When questioned as to how she had come to refer to the purchasers of the
Bucklands property as she did, Mrs Thorburn had no recollection as to how she had learnt that Mr Gruebner was not to be on the title to the Bucklands property.
15 Front of Insight Legal’s file for sale of Clovelly Road, at CB 319.
16 Authority and Instruction Form for Clovelly Road dated 18 December 2007, at CB 313.
17 Authority and Instruction Form for Bucklands Beach Road dated 18 December 2007, at CB 316.
[60] I am not able to infer that Mrs Carr gave her consent to the acquisition of the Bucklands property as an asset of the RMCFT on the basis of the client description on the front page of the A & I form in respect of the purchase of that property.
[61] Three second pages of the A & I form are in evidence. One executed by Mr Gruebner alone, which must relate to the sale of Clovelly Road,18 was returned to Insight separately from the others.
[62] Another second page has been signed by Mrs Colebrook and Mrs Carr,19 and another has been signed by Mrs Colebrook alone.20 Counsel spent time trying to ascertain which second page went with which first page, with the vendors seeking to put the second page that Mrs Colebrook and Mrs Carr had both signed with the first
page of the A & I form for the purchase of the Bucklands property. I am not satisfied that it is possible to make that connection.
[63] Mrs Carr’s recollection was that she called into her mother’s house that is, Mrs Anderson, as that is where the forms had been faxed. Mrs Anderson’s name and fax number is one of several appearing on the various copies in evidence. Mrs Colebrook was not present. Mrs Carr said that she initialled the first page of each A & I form but that she signed only one second page, being the second page of the A & I form in respect of the sale of Clovelly Road. Mrs Carr was adamant that she did not sign the second page of the A & I form for the purchase of the Bucklands property and that she would not have done so without knowing that funds were in hand to settle.
[64] Mrs Carr is a solicitor. Her evidence was that she knew that she would be liable personally on the purchase if she signed, and she was not willing to do so without knowing more from Mrs Colebrook as to the purchasing entity and funding.
[65] The issue is whether it is possible to find that Mrs Carr executed the A & I
form in respect of the purchase of the Bucklands property or, alternatively, that her initials on the first page of the form are evidence of her consent to the purchase.
18 Authority and Instruction Form for Clovelly Road dated 19 December 2007, at CB 301.
19 Authority and Instruction Form for Bucklands Beach Road, above n 17, at CB 318.
20 At CB 317.
[66] I am unable to make such a finding. In my view it is more likely than not that Mrs Carr executed the second page of the A & I form intending to authorise and instruct Insight on the sale of Clovelly Road.
Client statements
[67] The vendors also rely on client statements prepared by Mrs Thorburn, one on the sale and one on the purchase. Mrs Thorburn said that she prepared these statements of her own initiative, that they were in draft, and that they would not have been provided or shown to Insight’s clients. That evidence alone makes it unlikely that the statements could assist the vendors’ case on the issue of whether Mrs Carr gave the necessary consent.
[68] The statement on the sale of Clovelly Road is addressed to the trustees of the E M Colebrook Family Trust.21 Again, that is an obvious error. The statement on the purchase is likewise addressed to the trustees of the E M Colebrook Family Trust.22
[69] Both statements assume that the proceeds of sale of Clovelly Road are to be applied to the purchase of the Bucklands property. The statement in respect of the sale has an entry “Balance transferred to your purchase $1,721,000”. The statement in respect of the purchase recorded that these funds were to be applied to the purchase.
[70] Mrs Thorburn thought it likely that these entries concerning the proceeds of the sale of Clovelly Road reflected an assumption on her part that the funds from the sale were to be applied to the purchase. She said in evidence that she had not received instructions as to how the proceeds of sale were to be applied, or as to the source of the funds required to complete the purchase of the Bucklands property.23
Mrs Thorburn’s evidence was that appropriate journal entries in Insight’s trust
account would have been required if the funds received from the sale were to be applied to the purchase. There is no evidence of the preparation of any such journal
21 Insight Legal statement to the trustees of the E M Colebrook Family Trust dated 19 December
2007, at CB 75.
22 At CB 77.
23 Notes of Evidence of G A Thorburn given on 13 November 2013, at 197.
entries. Again, given Mrs Thorburn’s evidence, I am not able to draw the inference
that the vendors seek.
Notice of change of ownership/occupancy
[71] Fourthly, the vendors rely on the draft notice to the local authority of change of ownership/occupancy of the Bucklands property.24 The notice records the new owner/occupier of the Bucklands property as “Elaine Margaret Colebrook & Shona Mavis Carr as Trustees of E M Colebrook Trust”. Again, Mrs Thorburn’s evidence was that she prepared the notice on the basis of an assumption as to the identity of the purchaser and that the notice would have been retained on Insight’s file, given
that the purchase was not settled.
Result
[72] On the evidence before me I am unable to draw an inference that Mrs Carr consented to the acquisition of the Bucklands property as an asset of the RMCFT. Accordingly, it is unnecessary for me to determine any of the other issues raised.
[73] I dismiss the Plaintiffs’ claim. The Defendants are entitled to costs on a
2B basis, together with disbursements. In the absence of agreement, the parties may submit memoranda. I certify for one counsel only.
..................................................................
M Peters J
24 Notice of Change of Ownership to Valuation New Zealand and Manukau City Council, at CB 66.
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