Stuckey v Nelson HC Christchurch CP 101/0l

[2001] NZHC 249

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY CP 101/0l

BETWEEN STANLEY JOHN STUCKEY
Plaintiff

AND MOLLY FRANCES NELSON
Defendant

Hearing: 19, 20 and 21 March 2002

Counsel: C J O’Neill and C M Bull for Plaintiff
N R W Davidson QC and G J Wakefield for Defendant

ORAL JUDGMENT OF PANCKHURST J

Solicitors:
Barker & Associates, Christchurch for Plaintiff
Wakefield Associates, Christchurch for Defendant

Introduction:

[1] The parties in this case are 77 and 75 years of age respectively. The dispute which brings them to court is a constructive trust claim. The defendant, Mrs Nelson, owns a house property at 28 Bowenvale Avenue, Christchurch and land with a cottage on it at Ruby Bay, between Nelson and Motueka.

[2] Mr Stuckey, the plaintiff, asserts that he provided for Mrs Nelson and her family in the 1960s, effected various improvements to the property at Bowenvale Avenue, and paid a little over half the purchase price for the Ruby Bay land as well as subsequently building a cottage upon it. The context of the claim is a de facto relationship which persisted from about 1962 to 1986, therefore a period of about 25 years, albeit it was not a constant relationship throughout that time.

[3] A major problem in the case is delay. The proceeding was not filed until September 2001, that is 15 years after the end of the relationship and 30 years or more after the occurrence of many of the significant events. I shall need to return to that issue when I consider the consider the defence of laches which is raised on Mrs Nelson’s behalf.

[4] Although a case of this kind would ordinarily be heard as a witness action, affidavits were filed in anticipation of an interlocutory argument. By consent these were adopted as the evidence in chief for witnesses. However, there was also considerable cross-examination of deponents including Mr Stuckey and Mrs Nelson in particular. Many of the other witnesses were also cross-examined although not necessarily at such length.

[5] The case is one where issues of credibility and reliability loom large. I am grateful to counsel for their co-operation yesterday in taking certain steps which enabled the evidence to be completed. Despite the hour I then heard final submissions. I have been able to reflect on these overnight and this morning prepare this oral decision. In my view it is important to deal with the case immediately given the nature of the issues but also the stress which I apprehend the parties must be under on account of a proceeding of this kind.

The Relationship:

[6] Mr Stuckey was born in 1924. He served overseas during the war. He is a qualified carpenter by occupation. He married in about 1950, 1951. There were children of that marriage. He separated from his wife in about 1958. At that time the family, he said in evidence, was living in a state-owned house.

[7] Mrs Nelson was born in 1926. She married her husband, Henry McMillan, in 1946. There are four children of that marriage, the eldest a son and three daughters. They were born in the period 1947 to 1952. Mr and Mrs McMillan then separated in about 1954. The family occupied a house in Christchurch and, according to Mrs Nelson’s evidence, she purchased her husband’s interest in that property and subsequently acquired Bowenvale Avenue as a home for herself and her children. It also became home to up to three or four boarders who at times stayed at the address. When she was not in full-time employment Mrs Nelson was financially dependent upon an income from boarders either in whole or in part.

[8] The parties met in about 1962. The plaintiff, Mr Stuckey, commenced living at Bowenvale Avenue as a boarder initially sleeping in the sunroom. After a short while the relationship changed and he shifted into Mrs Nelson’s bedroom. That, of course, marked the commencement of a de facto relationship. That much is common ground. Otherwise pretty much everything is in dispute.

[9] The nature of the financial arrangement which existed between the parties, the role if any played by Mr Stuckey in relation to the children and the extent of the contributions which he made to Bowenvale Avenue are all contentious issues. I shall need to return to them shortly.

[10] In about 1964 Mr Stuckey moved to Otematata for a time. He explained in evidence that work took him there. He was employed by Fletchers Construction company and at that time there was a need to provide insulation for a facility which was part of the development of a power station. Hence he said he was required for work purposes to live in Otematata for a period of months.

[11] Mrs Nelson’s perception was somewhat different. While she acknowledged that he may have gone for work purposes she was concerned that he became involved with another woman. This is something of a constant theme throughout the evidence and in relation to the 25 years or so of the relationship. Mrs Nelson makes a number of accusations concerning Mr Stuckey’s relationship with other women. Those accusations are met with equal denials. In any event the sojourn in Otematata lasted for only a period of months after which Mr Stuckey returned to Bowenvale Avenue. It is common ground he was resident there for the balance of the 1960s. He cared for the garden and constructed a number of fowl houses on the property as well as a sleep-out suitable for use by boarders.

[12] I should explain that Mrs Nelson has an interest in breeding rare fowls. These she has displayed. There have been significant numbers of fowls on the property for many years. This was plainly a source of problems both in the neighbourhood and as between Mr Stuckey and Mrs Nelson. Correspondence was produced which evidenced the problem from the neighbours’ perspective. They complained of noise, smell and a failure to control the fowls. A health inspector was involved and at one stage there was a petition on behalf of the neighbours seeking the intervention of the council to deal with the problem as they perceived it. Mr Stuckey, too, was not enamoured of the presence of domestic birds on the property. He considered that they were given undue licence and as a result hygiene within the house was compromised. I do not think it would be unfair to observe that Mrs Nelson could perhaps be regarded as eccentric to some extent, in regard to this interest at least.

[13] The evidence concerning this period in the 1960s also includes the first allegations of physical violence. Mrs Nelson’s two oldest daughters have given evidence of events in the early 1960s when they were aged 12 to 14 years. Both say that Mr Stuckey used inappropriate physical violence. For example, arm twisting and things of that kind. One of the daughters, Gena Ryan, also gave evidence of sexual touching, what might perhaps best be explained as groping, on a number of occasions. This is denied. I will have to return to this aspect later and deal with it in relation to not just the two daughters but Mrs Nelson as well.

[14] In late 1969 or early 1970 the parties were again apart for a time. Mr Stuckey travelled to Gove, a town in the Northern Territory of Australia. He was employed in the building, in effect, of a new bauxite township. There is conflict between the parties as to how long he was away. Mr Stuckey said that he was gone for fully twenty-five months during which period he earned a significant sum by way of wages and was able to save about $80,000. Mrs Nelson, however, maintained that he was only gone for seven months.

[15] This is typical of the conflicts which arise in this case and which are almost impossible to resolve at this distance in time. Mr Stuckey was challenged to produce his passport and there was no response to that challenge. However his counsel suggested in cross-examination that no purpose would be served by such an exercise since it was asserted passports were not needed for travel to Australia at that time. Frankly I do not know. There is no evidence other than an assertion from counsel in the course of cross-examination on the point. I mention these matters because they are not untypical of problems in the case. Mrs Nelson denies that Mr Stuckey returned from Gove replete with $80,000 in cash. Her evidence is to the effect that he was never good with money and that on his return he had at best a much more modest sum.

[16] At about the same time in the early 70s Mrs Nelson remarried. Until then, although I have for convenience referred to her as Mrs Nelson, she was in fact Mrs McMillan. She married a Mr Nelson who, as it happens, also lived in Nelson. That marriage was short-lived. It lasted for only about two months. It is common ground that thereafter the parties resumed their relationship at Bowenvale Avenue.

[17] There were two events of significance which occurred in 1972. Mr Stuckey began the construction of an ocean-going vessel which was named ‘The Wild Goose’. This was built in the backyard at Bowenvale Avenue. After a time a large shed was constructed to enable the vessel to be completed under shelter. It too became a bone of contention between the parties. Mrs Nelson maintains that building the boat became Mr Stuckey’s passion, that he was devoted to it and at her expense. Resources, she claims, were poured into the boat with the result that she supported him. Further, Mrs Nelson maintains that she purchased various items of equipment for the boat including, by way of example, an engine which was acquired from Gough Gough & Hamer as it then was. Mr Stuckey denies this. He maintains that he used part of his $80,000 saved in Gove to finance the construction of the boat. Moreover that he continued to pull his weight in the household by maintaining the garden, and the house, and working as a builder. What is common ground is that the vessel was built over a period of years. It was some 37 feet in length, ocean-going and ultimately completed to a high standard.

[18] The other event in 1972 was the purchase of a block of land at Ruby Bay. By this time two of Mrs Nelson’s daughters were resident in the Upper Moutere area. The thought of retirement there in due course arose. A block of land, 1.9 hectares, was found on the main road at Ruby Bay. It was purchased for $9,000. Who paid that purchase price is very much in dispute. Mrs Nelson maintains that she paid the full amount, whereas Mr Stuckey maintains he provided $5,000 and Mrs Nelson $4,000. No records relevant to the purchase or at least the financial aspects of it exist. It is clear, however, that Mrs Nelson alone signed the agreement for sale and purchase and she alone became the registered proprietor of the property. Nor, it seems, was Mr Stuckey involved in the steps necessary to complete the transaction. The extent of his involvement according to his evidence was provision of the $5,000 to Mrs Nelson, so that she could hand that money to her solicitor who attended to the transaction.

[19] In any event in about 1973-74 Mr Stuckey was involved in clearing the land and in the construction of a small house or cottage on it. This is in large measure undisputed. The cottage is 78 square metres with a deck of about 22 square metres. That Mr Stuckey supplied the labour to build that cottage is not in dispute. The source of the materials for the construction is. He asserts that he provided the timber and other items for the building. Mrs Nelson totally disputes this. Her evidence is that she provided all materials or at least the vast majority of them.

[20] It is then possible to move onto 1983. In that year Mrs Nelson retired early from her employment with the Post Office. She had obtained a job there in 1966. In the latter years there were major problems on account of her absences from work which in due course precipitated her early retirement at 57 years.

Documentary evidence which was produced indicates that Mrs Nelson missed numerous days over the final few years of her employment. Again there is dispute as to why. She maintains that ongoing violence at the hands of Mr Stuckey caused injuries and perhaps psychological effects which necessitated her having time off work. Mr Stuckey totally denies this. He suggested that a combination of natural health problems and what he described as hypochondria were the cause of the absenteeism.

[21] In 1984 Mr Stuckey retired. The final three years of his working life he drove buses. Otherwise he had been engaged in the building industry. As to that I accept his evidence and that of other witnesses that he was a good worker and a competent tradesman.

[22] Then in 1986 the parties separated. They had to a degree been living separate lives prior to then. Mr Stuckey was spending a good deal of time at Ruby Bay or staying on his boat which had been moored at Mapua and various other places. Mrs Nelson, while not disputing the fact that they were apart, asserted that part of the reason for it was that Mr Stuckey was having an affair with a local woman at Ruby Bay. Needless to say he equally adamantly denies that such was the case. Mr Stuckey said that the final parting was precipitated by Mrs Nelson’s arrival at Ruby Bay with a number of fowls to be kept there. He said he could not face the prospect of a repeat of the problems which had existed at Bowenvale Avenue. He in effect sailed off on ‘The Wild Goose’. Incidentally, with reference to the boat, Mrs Nelson maintained in cross-examination that it was something of “a magnet” to other women such that Mr Stuckey had what she described as a harem of sailing companions.

[23] In 1988 Mrs Nelson suffered a stroke. She has made a reasonable recovery from that. While she has some physical effects she is, as best I could judge, intellectually unimpaired. In that year she also began the process of subdivision of the land at Ruby Bay. Over time it was divided into four large sections, two to the rear of the land which is elevated and which have views out to the sea and access from side roads, and two even larger sections which have a frontage to the main highway. On one of these the cottage is situated.

[24] The process of subdivision was not straight-forward. An appeal was required in order to win the necessary consent. Then of course Mrs Nelson had to provide services and effect the subdivision itself. She borrowed a total of $120,000 to cover legal and subdivisional expenses. This, however, proved to a good investment because in 1992 she sold one of the sections for $100,000 which enabled repayment of the loans in whole or in the greater part.

[25] Meanwhile Mr Stuckey had met his present wife in 1987. They were married in 1990. They live in Christchurch in a house which belongs to Mrs Stuckey. I should also record that shortly prior to the marriage Mr Stuckey sold ‘The Wild Goose’. He realised $65,000 from its sale.

[26] Commencing in about 1993 Mrs Nelson made a series of accident compensation claims. After consultations with various doctors she established a 20% disability in relation to a spinal and a neck injury. More relevantly for present purposes she also established a 50% disability on psychiatric grounds. The back injury was ascribed to violence at the hands of Mr Stuckey. Likewise on the basis of allegations concerning his violence towards her over a period of many years Mrs Nelson won the support of a psychiatrist who formed the opinion that she suffered from post traumatic stress disorder or, as it is sometimes colloquially put, that she was a battered wife as a result of the violent relationship in which she had lived. I shall need to return to the evidence of Dr Ding, the psychiatrist, in a moment. In any event as a result of ACC claims Mrs Nelson received a very substantial capital sum.

[27] Nothing more of moment then occurred until last year. There was in the meantime some contact between the parties. There is dispute as to who initiated such contact and as to its nature and scope. There was in the end, however, agreement that on 13 July last Mr Stuckey and Mrs Nelson drove to two retail premises in Christchurch and then had lunch together at a restaurant on Opawa Road. During the course of that lunch two cheques were written out, one for $2,000 and one for $5,000. Mr Stuckey’s evidence is that these cheques were for him and came unsolicited. He explained that both were aware of publicity about the passage of new legislation affecting the rights of persons in de facto relationships. In that context he said that Mrs Nelson offered him initially $2,000. He described a cheque for that sum as so paltry as to be an insult and said that she substituted a cheque for $5,000 on account of his protest. It is at least common ground that the cheque, when presented, was not met.

[28] The defendant, Mrs Nelson, maintains that she did not offer the cheque unsolicited at all. Rather that she was asked for money, Mr Stuckey having opened his wallet to reveal it was empty. She said that she wrote initially a cheque for $2,000 to which he responded “You must be joking. After all I have done for you over the years”. Hence she wrote a second cheque for $5,000. However she agreed that she immediately stopped payment on the cheque and, moreover, that being fearful of the reaction she contacted the police and arranged for a trespass notice to be served on Mr Stuckey. Again it will be necessary for me to return to this aspect in a moment.

[29] In September 2001 this proceeding was filed. Finally, in November of that year, the second rear section at Ruby Bay was sold. The sale price was $225,000. With reference to the asset at Ruby Bay I was provided with some valuation evidence. A registered valuer’s report indicates that the market value of the land upon which the cottage is situated is about $169,000. Of that the land component was assessed to be $115,000 with the cottage itself accounting for $49,000 exclusive of chattels. The adjacent section was not valued but has a capital value with Quotable New Zealand of $78,000. Similarly the capital value of Bowenvale Avenue is $142,000.

The Basis of the Claim:

[30] In broad terms there are two main aspects to Mr Stuckey’s claim. In the first part it relates to Bowenvale Avenue. During the time he was resident there he asserts that he provided ongoing financial assistance to Mrs Nelson and the family. Also that he made improvements by way of the sleepout, fowl houses and a garage. Further that he established and maintained a garden as well as upgrading the house itself. This aspect of the claim relates to events which occurred from as early as 1962 through to about the mid 1980s.

[31] The second part of the claim concerns Ruby Bay. Mr Stuckey of course asserts that he provided cash of $5,000 towards the purchase of the land, that he cleared the land and subsequently built the cottage. As to the last aspect I have the benefit of a brief report from a quantity surveyor. The conclusion reached was that construction of the cottage would have occupied of the order of 510 hours which, at a then labour rate of $5 per hour, would equate to labour to a value of $2,550. That then is the basis of the claim.

[32] The defences raised on Mrs Nelson’s part are both factual and legal. The contributions asserted by Mr Stuckey as the basis of his equitable constructive trust claim are very largely disputed. Save for the work in constructing the cottage at Ruby Bay and clearance of the land in part, most of the other contributions are in dispute. In any event Mr Davidson QC argued that any contribution was outweighed by the benefits which Mr Stuckey had obtained in the course of the relationship. It was asserted that such benefits were financial, board and accommodation and included assistance in the furbishment of the boat.

[33] There were also two positive defences asserted. The first was based on delay being the equitable defence of laches. Secondly it was contended that Mr Stuckey in seeking equitable relief did not come to this Court with clean hands. Here I was asked to consider the allegations of violence in relation to Mrs Nelson, and to a lesser extent her daughters, and to conclude that such was disqualifying conduct in the context of a claim based in equity.

Constructive Trust Principles:

[34] I do not consider an elaborate reference to the principles is required. Lankow v Rose [1995] 1 NZLR 277 (CA) is the leading case. Indeed I propose to adopt the expedient of recycling two paragraphs from a previous judgment which I have written in a similar context:

“In broad terms a claimant must establish two things : direct or indirect contribution to the acquisition or preservation of the other party’s assets, and that in all the circumstances the parties must reasonably have expected that the claimant would share in the assets as a result of that contribution. Where the claimant can satisfy this test, such that equity would regard it as unconscionable for the other party to deny the claimant’s beneficial interest, then the imposition of a constructive trust will result.

I think it helpful to add two extracts from Lankow v Rose concerning contributions and quantification of a claim, respectively. The first is from the judgment of Hardie Boys J at p 282

‘. . . by contributions to assets one is not referring to those contributions to a common household that are adequately compensated by the benefits the relationship itself confers. The contribution must manifestly exceed the benefits . . . . Further, the contributions need not be in money; they may be in services or in any other respect. But there must be a causal relationship between the contributions and the acquisition, preservation or enhancement of the defendant’s assets for, as a claim to a constructive trust is a proprietary claim, a claim to an interest in property, the contributions must have been made to assets; not necessarily to particular assets, but certainly to the defendant’s assets in general. The contributions may then be recognised by the imposition of a trust over a particular asset or particular assets, which may in turn be quantified or satisfied by a monetary award.’:

As to quantification the judgment of Tipping J at p 295 contains this:

‘In the case of a de facto union, the claimant does not start from a presumptive half-share but rather from nothing. A de facto claimant must demonstrate first a case for an interest and then what that interest should be. The interest must broadly reflect the contributions. Arithmetical precision will generally be unattainable and is in any event not necessary. The Court must, however, do its best to reflect in the assessed shares the value of the claimant’s contributions. That value will represent, if uncompensated, the amount of unjust enrichment accruing to the defendant which in turn is the amount of the claimant’s sacrifice.’ ”

My Findings:

[35] I shall deal with the pivotal findings in the case under a number of sub headings. The first is violence. Considerable material was produced in relation to this aspect of the case. Much of the cross-examination also was directed to it. I do not think it is desirable or necessary to review such evidence in detail. In the final analysis the relevance of this aspect of the case is in itself in issue. To that question I will return shortly.

[36] Mrs Nelson in short maintains that she was a battered wife from the late 1960s until near the end of the relationship. Her affidavit evidence includes florid accounts of various incidents culminating often in physical violence and sometimes in injuries. These are on a significant number of occasions linked to doctors’ notes which record visits she made to general practitioners during the relevant period. Such notes refer to various ailments and on occasions there are injuries which could be consistent with domestic violence. Moreover on a few occasions the notes contain mention of “Stan”, being Mr Stuckey, in the context that he had caused an injury. However, for the most part the references to ailments and injuries are, as one might expect, non-specific.

[37] On the other hand there is also evidence from a retired general practitioner, Dr Walshe. He was consulted by Mrs Nelson in the period 1968 to 1973. His affidavit includes observations to the effect that she was reluctant to unburden herself but that nonetheless it was obvious she was a long-suffering person in a violent relationship. He makes as well the observation that she needed “running repairs” from time to time. In making these observations Dr Walshe acknowledged that he was dependent on memory since relevant medical notes had long since been destroyed. For all that his evidence, in my view, cannot be lightly dismissed.

[38] To go to the other end of the time span there is the evidence of Dr Ding. He was the psychiatrist who saw Mrs Nelson in 1993 and 1994 in relation to her intended ACC claim. Ultimately he supported that claim satisfied that she suffered from post traumatic stress syndrome and that she could be described as a battered wife. Dr Ding accepted in cross-examination by Mr O’Neill that he was essentially dependent upon Mrs Nelson’s honesty in relating a history of the relationship to him. But he considered that there was what he called “collateral information” which was at least consistent with her account.

[39] There is also, of course, evidence of the two eldest daughters who I will refer to as Gena and Heather. Both said that they witnessed violence and experienced it at the hands of Mr Stuckey. I was impressed with the evidence of Heather in particular. She is a person who has language skills. In her affidavit she described not only incidents of violence but also changes in her mother over the years. This related to Mrs Nelson’s demeanour, her ability to relate to others including for example her grand-children. This description seemed to me to be consistent with Dr Ding’s diagnosis and the description he gave of certain of the symptoms of the condition which he considered was present when he dealt with Mrs Nelson.

[40] There is also the evidence of Mr McDonald. He has been Gena’s partner for about thirty odd years. He said that he too saw signs and even one or two incidents of violence. Significant in my view his evidence was not all one way. He was not reluctant to acknowledge that Mr Stuckey was a tradesman of real ability, that he was a gardener in and around Bowenvale Avenue throughout the time he was there and that he was a skilled boat builder based on the witness’s observations of the construction of ‘The Wild Goose’. Nonetheless Mr McDonald also spoke of a dark side.

[41] There was further evidence from Detective Battersby. His evidence, or at least the cross-examination, was conducted at a distance since he is now retired from the police force and resident in Nelson. In any event he met Mrs Nelson in the 1970s in the course of his investigation of a fraud complaint. He became something of a confidant’. She spoke to him from time to time about problems which she was having at home. His evidence also referred to his having knowledge that there were attendances by uniformed staff at Bowenvale Avenue on odd occasions. Mr Battersby also said that on one day he had spoken to Mr Stuckey intending to effectively counsel him in relation to his alleged conduct. As to this conversation he said that he found Mr Stuckey to be entirely plausible but also non-accepting of the allegations which had been made against him.

[42] Well, as against this body of evidence I must, of course, assess Mr Stuckey’s adamant denials. I must also bring to account the supporting witnesses who gave effectively character evidence as well as evidence on other aspects. They spoke of Mr Stuckey as a person whom they trusted, who did not drink to excess and whom they had not seen involved in episodes of violence. Moreover Mr Stuckey himself denied that he was ever violent with either the daughters or Mrs Nelson. He too said he did not drink to excess and I accept that there is no evidence, independent of Mrs Nelson, to suggest that he did.

[43] In the end his evidence of denials suffered from one major defect. Mrs Nelson maintained that at the commencement of their relationship in 1962 she was told by Mr Stuckey that he had recently been in prison for assault. He denied this on oath in an affidavit. As to the accusation he said:

“Her claim that I had been in prison is completely false and defamatory. I have never been in prison. In fact I do not have any criminal convictions at all. My only brush with the law in my 77 years of life is to collect a $60 fine for exceeding the speed limit.”

That denial was repeated in cross-examination.

[44] At that point Mr Stuckey was confronted with a criminal record sheet from the Magistrate’s Court at Christchurch. It bore entries relevant to 9 July and 17 July 1961. On the first occasion Stanley John Stuckey appeared and was remanded on bail. In my view that appearance is consistent with an arrest. Then on 17 July, only eight days later, there was a defended hearing. The criminal record sheet confirms that prosecution evidence was heard at which point there was a change of plea and Mr Stuckey was sentenced to imprisonment. In the end result Mr Stuckey in this Court accepted that the entries in the criminal record sheet had to relate to him. His age was one year out but the name was identical and, significantly in my view, the solicitor who appeared for the defendant was Mr Twyneham who was Mr Stuckey’s solicitor with reference to access and maintenance problems at that time. Despite this evidence Mr Stuckey maintained that he could not recall the court appearances let alone the outcome. It seems that the sentence of imprisonment was for one month although the handwriting on the sheet is not easy to decipher.

[45] This evidence impressed me as consistent with a domestically-related assault, subsequent perhaps to the break-up of the marriage. Whatever the context this evidence is significant in relation to the present dispute in determining whether the relationship between the parties was characterised by violence or not. On the basis of all of the evidence I heard I am persuaded that this was a relationship where there were instances of significant violence throughout its term.

[46] I do not propose or need to explore the details further. Indeed I tend to agree with Mr O’Neill that the extent and seriousness of the allegations appears to have escalated over time. Now there are allegations of repeated non-consensual sexual acts including rape. There is also a graphic but disputed account concerning a miscarriage and the disposal of a foetus in about 1964. Mrs Nelson maintains she lost that child as a result of violence at the hands of Mr Stuckey. He counters that the miscarriage occurred while he was in Otematata and that he had no involvement in it. It is simply not possible at this distance, nor is it necessary, to make findings in relation to events as unfortunate as these.

[47] Mr Davidson advanced the whole aspect of violence as disqualifying conduct in an equitable context. I will return to that. For my part I see the evidence as most significant in assessing the nature of the relationship which existed between the parties over the years and, in turn, in assessing the probabilities with reference to issues such as financial support and whether, for example, Ruby Bay was a joint and shared venture. To my mind the presence of a violent underside to the relationship is important to the assessment of these matters.

Financial Contributions:

[48] To recap Mr Stuckey asserted that he made direct financial contributions from his earnings particularly during the earlier years from 1962. He stated that he was in regular employment, that he received a good wage and he explained that if his weekly income was say £20 then say £12 of that would have been paid to Mrs Nelson. She, however, responded that this was totally untrue. Mrs Nelson’s evidence was to the effect that Mr Stuckey paid board for a short time after his arrival, but once he became a de facto partner he ceased to contribute financially at all. I do not accept that. For the first two or three years after 1962 Mrs Nelson was not working until she obtained employment at Coronation Hospital and then at the post office. Her sole source of support was from boarders of whom there were up to three or four at a time. The notion, however, that she supported herself, four growing children and Mr Stuckey from that source is, I think, implausible.

[49] On the other hand I do not consider that qualifying financial contributions have been established by Mr Stuckey either. There was no sharing of finances. The parties maintained separate bank accounts. Nor is there evidence of particular or specific payments made by Mr Stuckey. It is common ground that Mrs Nelson paid the household expenses. As to this there was considerable evidence as to how frugal she was and as to the lengths to which she went in order to make ends meet. I think the high point of the plaintiff’s evidence was when he said in cross-examination that he “paid the going rate per week plus a few dollars for her clothes”. That is the going rate for a single man’s board. In my view such evidence as there is does not demonstrate a financial contribution which clearly exceeded the benefits received by way of board and accommodation.

Improvements to Bowenvale Avenue:

[50] It is common ground that Mr Stuckey undertook various tasks in and around the property. My difficulty is in the assessment of their nature and extent. He constructed a sleepout. This was made of board and batten, and was self-contained except that there were not bath or toilet facilities. The sleepout still exists. Photographs of it have been produced. It is now dilapidated but, as Mr Stuckey said, in the interim it has been used to house fowls, whereas originally it was accommodation for boarders. On the evidence I am satisfied that the sleepout was an asset, particularly at the time Mrs Nelson had boarders at Bowenvale Avenue.

[51] Mr Stuckey also constructed a number of fowl houses. These seemed to have been quite substantial. A plan was produced as to their layout which indicates the extent of the buildings and of the run areas as well. A significant number of birds were housed. The number is also in dispute. There is no evidence of the present condition of the fowl houses. Moreover, whether they ever enhanced the property is something which I find difficult to judge. No doubt they represented an asset in Mrs Nelson’s mind given her passion for the breeding of rare fowls. But in terms of the hypothetical willing buyer of a house property in Bowenvale Avenue, I consider that these additions would rather be regarded as a detraction. They would have no use to the average buyer. They may well require removal. How then am I to assess the fowl houses in the context of the present claim?

[52] In addition Mr Stuckey maintains that he upgraded the house and garage. It is common ground that a single roller door was fitted to what is a double garage. Mr Stuckey maintains that he built the whole structure. There is also disputed evidence concerning the extent of improvements to the house itself. I heard evidence concerning changes to the washhouse interior, redecoration, replacement of weatherboards and that the exterior was repainted on a number of occasions.

[53] In general as to these matters I accept Mr Stuckey’s evidence. I think the work which he has described is consistent with the tenor of all of the evidence I have heard. In particular he was a good worker and tradesman and not stinting in relation to his time. To my mind the real question is whether these contributions are qualifying ones in terms of the relevant constructive trust principles. The fact remains that Mr Stuckey lived at Bowenvale Avenue on and off for a period of about 20 years. It was as I understand the evidence his primary accommodation, at least until ‘The Wild Goose’ was completed and post retirement when he spent increasing time at Ruby Bay.

[54] I have no evidence of the actual levels of expenditure or as to the value of the labour provided in relation to these projects at Bowenvale Avenue. Nor is there any formal valuation evidence. That is hardly surprising. This work was, afterall, undertaken in the late 1960s and through the 1970s, 20 to 30 years ago. But it renders the judgment which I have to make, whether there are contributions deserving of recognition in a constructive trust context, difficult indeed.

[55] In the end I am not persuaded in relation to this aspect of the case. For contributions to quality they must be over and above the benefits derived by the plaintiff in the course of the relationship. There must also be a causal relation between those contributions and the preservation or enhancement of the defendant’s assets. Is Bowenvale Avenue as an asset preserved or enhanced as a result of Mr Stuckey’s efforts all those years ago, or were those contributions of a kind that were spent during the course of the give and take of the relationship itself? On balance I prefer the latter view. It follows that this aspect of the claim is not made out either.

Ruby Bay:

[56] This in my view is the most contentious aspect of the claim. Here there is evidence, albeit disputed, of a direct contribution to the acquisition of an asset, the land. Moreover it is common ground that Mr Stuckey built the cottage on that land a year or two later. I need to consider each of these aspects.

[57] I begin by noting that the statement of claim asserted that Mr Stuckey made a contribution of $4,000 to the purchase price. On the other hand his evidence has always been that the figure was $5,000. Why this discrepancy exists I do not know. In any event Mr Stuckey said that the $5,000 came from his Gove savings. I think it is important to reflect upon the significance of the assertion that $5,000 was invested in the purchase of this land.

[58] In 1972 $9,000, the full purchase price, was a very substantial sum. It was sufficient to buy a reasonable house property in a metropolitan centre. Hence even $5,000 was a major cash investment. There is of course no documentary trail relevant to the financing of the purchase. The lapse of time has put paid to that. Mrs Nelson is equally adamant that there was no $5,000 contribution. She says that Mr Stuckey participated to the extent that he was present when the land was found and a decision was taken to acquire it. However she alone signed the agreement for sale and purchase and she alone became the registered owner.

[59] As to this Mr Stuckey said that he saw no need to be on the title. He described his approach at the time as one of commitment to building a future together in retirement. Mrs Nelson said that she gathered the full $9,000 from various accounts and ultimately provided it to Mr Stammers-Smith, her solicitor. At least there is agreement that the mechanics of the transaction were all handled by Mrs Nelson. Otherwise it is a situation of black and white conflict so far as the source of the $5,000 is concerned.

[60] In these circumstances I am driven to a consideration of the subsequent external events. Not only did Mrs Nelson sign the agreement and take title alone but she alone has managed the property ever since. There has been no evidence of financial contributions to the outgoings on Ruby Bay by Mr Stuckey. He had no involvement in the process of subdivision although that of course occurred post the end of the relationship. Save for his building the cottage and the work he undertook in clearing the land there is nothing in his conduct which is consistent, to my mind, with his having an interest, indeed more than a half share in the land.

[61] Then there is the circumstance that from 1986 to 2001 nothing was done to assert an interest despite the magnitude of the financial contribution which he had made, on his evidence, in 1972. I find all this extraordinary. The more so given that in paragraph 29 of the statement of claim it is asserted:

“It was always the intention of the parties that in the event of their relationship foundering, their properties would be split on an equal basis.”

Again there was no evidence to establish such a common intention. Nor, as I have said, conduct consistent with the existence of such an intention.

[62] For these reasons I am not satisfied that there was a $5,000 contribution made. I prefer the evidence of Mrs Nelson that she paid the full purchase price. That to my mind is consistent with all of the external indicators to which I have already referred. It is perhaps also consistent with the thrust of the evidence that she was a saver and an accumulator, whereas Mr Stuckey was not.

[63] I am conscious that this represents a preference for the evidence of Mrs Nelson over that of Mr Stuckey when there are some aspects of her evidence which have caused me to pause. For example she said that although Mr Stuckey maintained the garden at Bowenvale Avenue until 1969 he did not do so thereafter. That is not borne out by the evidence of others including Mr McDonald. I also noted earlier, what was referred to by counsel as an escalation in the level of allegations of violence and abuse. But the most significant element is a shift in Mrs Nelson’s evidence in court in relation to the cheque transaction in 2001.

[64] In her affidavit she said that that meeting occurred at Bowenvale Avenue and, in effect, that she was forced to write out the cheque under duress. She also said that immediately after Mr Stuckey left she not only stopped the cheque but contacted the police and arranged for the service of a trespass notice. By contrast, yesterday in giving evidence, she concurred completely or almost so in the plaintiff’s version of this event. She agreed that the two had been to retail premises in Christchurch together and then to a restaurant. The only difference that remained was as to whose initiative it was to write out a cheque in the first place. Mrs Nelson said that she did so when the bare wallet was produced, whereas Mr Stuckey maintained it was her idea he thought on account of the then publicity concerning the new legislative regime.

[65] Confronted with this significant shift in her evidence Mrs Nelson attributed it to what she called “muddled thinking”. She referred to her age and the fact of her stroke. I have difficulty in accepting that. There was no indication of confused thinking at any other time in her lengthy cross-examination. But even with these reservations about Mrs Nelson’s credibility I prefer her evidence with reference to the $5,000 payment. As I have already said it is the surrounding or external evidence which, to my mind, is the best indicator of where the truth lies.

[66] Mr Stuckey’s asserted contribution to the cottage is in a rather different category. It is not contested that he did work on clearing the land and building the cottage. The dispute is confined to the extent of the clearance work. It is plain that the property was grossly overgrown when it was purchased. It may well be that a bull-dozer was used to do some of the work particularly on the upper reaches, but for all that substantial manual labour would also have been required. That I am satisfied fell to Mr Stuckey.

[67] With reference to building materials, however, I prefer the evidence of Mrs Nelson. She produced both a schedule and a folder of invoices and receipts. These indicate that she paid some thousands of dollars towards building materials and furnishings for the cottage. Mr Stuckey’s evidence by comparison I found vague as to what he had paid for. He referred to the purchase of timber but not in detail to anything else. On balance it is my view that the building materials were supplied by Mrs Nelson as evidenced by the folder of invoices and receipts.

[68] But that leaves, of course, the contribution by way of labour, some 500 odd hours worth according to the quantity surveyor’s letter, $2,550 in 1972. There is also valuation evidence that the cottage itself, exclusive of chattels, has a present day value of about $49,000. The evidence shows that it is still in a reasonable state of repair. I am satisfied that the contribution here is different to the work that was undertaken at Bowenvale Avenue. Ruby Bay was afterall a separate and new asset then under development. Mr Stuckey assumed the burden of construction of the cottage. That enhanced the value of the land. He has had some benefit from subsequent occupation of it but not such as to, in my view, overreach the contribution which he made by constructing the cottage and clearing the land.

[69] In this regard I am also influenced by the evidence concerning the cheque transaction. Mrs Nelson ultimately accepted that she gave the cheque for $5,000 not in the privacy of her own home under duress but in a public place, a restaurant. I do not think, at least in relation to Mr Stuckey, she is given to largess. It is my view that her conscience was moved, albeit prompted by the then publicity, to the point of thinking that Mr Stuckey was entitled to something on account of his contribution to Ruby Bay.

[70] How then does one fix the value of that contribution? Precision is impossible. I think the figure, however, must reflect the present value of money rather than its value in 1972. I consider that $15,000 is the appropriate amount to reflect the value of the work which Mr Stuckey undertook.

[71] This conclusion means that I must confront the two positive defences. Was the plaintiff’s conduct such that he does not come to this court with clean hands in seeking equitable relief or does the delay, laches, so avail the defendant that relief should be denied on that score?

Clean Hands:

[72] I am conscious of the approach which applies under the Matrimonial Property Act 1976. That is that conduct is only relevant to the extent that it has had an impact upon the material assets of the parties. In short, a claimant is not to be disciplined or reproached on account of bad conduct by a lessening of the award that might otherwise result.

[73] That approach does not of course apply here in an equitable context but interestingly I consider that in accordance with equitable principle it is necessary to proceed in a similar fashion. Only one case of potential relevance was referred to being Banks v Downing CP36/89, Hamilton Registry, judgment 30 May 1990. There in the context of a constructive trust claim there was evidence of benefit fraud. The money thereby obtained was used in the context of the de facto relationship. The Judge, Anderson J, accepted that the conduct did have a material impact and could be brought to account. But I see that case as factually different for obvious reasons.

[74] The equitable approach in my view is adequately described in Equity Doctrines & Remedies, Meagher, Gummow and Lehane, 3rd ed. at para 326. The learned authors said this:

“For the defence of unclean hands to operate at all, the impropriety complained of ‘must have an immediate and necessary relation to the equity sued for’. If the relationship to the cause of action relied on by the plaintiff is indirect, it is irrelevant.”

That principle I consider is decisive here. The conduct in question is not in my view directly linked to the equity which is claimed. The equity claimed is a constructive trust based essentially on a labour contribution to Ruby Bay. I can see no sufficient connection between the conduct complained of and the contribution which founds the constructive trust finding I have just made. This defence must fail.

Laches:

[75] I am grateful to Mr Davidson for his reference to a number of authorities including : Neylon v Dickens [1987] 1 NZLR 402 (CA), Official Assignee of Collier v Creighton [1993] 2 NZLR 434 (CA) and Hourigan v Trustees Executors & Agency Co Ltd (1934) 51 CLR 619 at 629-630, in particular. My consideration of these promotes an understanding of the following principles.

[76] First it is for the defendant to establish the inequity, as it is put, which is the basis of the defence. Relevant considerations are the period of delay, the merits of the plaintiff’s case and whether failure to assert the claim has caused the defendant to act to their detriment in the meantime. In the end the ultimate issue is one of discretion. Is it just to allow the claim, despite the delay?

[77] In my view laches does not require non-recognition of the equity in this instance. The claim, as I have recognised it, is quite specific. It relates to the cottage and, in particular, the work that was undertaken in constructing it. That aspect was not much in dispute. Nor do I consider there is evidence that the delay has been prejudicial to Mrs Nelson. The scheme of subdivision I regard as an aspect which is separate from the cottage itself and the land on which it stands. The latter can be seen as a separate entity.

[78] For these reasons I find that a claim which is quite narrowly focused upon the cottage should still be recognised despite the fact that there has been inordinate delay of about 15 years in bringing it.

Formal Orders:

[79] There shall be judgment in favour of Mr Stuckey for the sum of $15,000. Costs are reserved. The plaintiff may file a memorandum within two weeks. The defendant shall have five working days within which to reply.