Taylor v Official Assignee - [2011] NZCA 630

IN THE COURT OF APPEAL OF NEW ZEALAND

CA598/2009
[2011] NZCA 630

BETWEEN BRONWYN CAROL TAYLOR, CALLUM ROBERT IAN TAYLOR AND FORTUNE MANNING TRUSTEE CO LTD, AS FORMER AND/OR CURRENT TRUSTEES OF THE C R AND B C TAYLOR FAMILY TRUST
Appellants

AND OFFICIAL ASSIGNEE IN BANKRUPTCY OF THE PROPERTY OF BRONWYN CAROL TAYLOR
Respondent

Hearing: 26 July 2011

Court: Chambers, Harrison and Wild JJ

Counsel: E St John and K P Giles for Appellants
G A D Neil for Respondent

Judgment: 9 December 2011 at 10 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe High Court judgment dated 26 August 2009 requiring the appellants to pay $227,771.80 and interest to the respondent is quashed.
CAll the respondent’s decisions to set aside the dispositions by the bankrupt other than the decision setting aside the 2006 gift are reversed.
DThe High Court costs judgment dated 2 December 2009 is quashed. Costs in the High Court are to be redetermined in that Court in light of this judgment and the reasons therefor.
E The respondent must pay the appellants costs in this Court for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.

REASONS OF THE COURT
(Given by Chambers J)

Table of contents

Para No

Introduction [1]

Issues on the appeal [5]
The 2000 transaction

The relevant law  [21]
The evidence relating to the 2000 transactions  [28]
The Judge’s findings on fraud: evidence up to 31 December 2000         [33]
Our evaluation: evidence up to 31 December 2000  [38]

The 2002 gift
The Judge’s findings in terms of s 60[50]
Was Mrs Taylor fraudulent in making the 2002 gift?[52]
The relevant law on s 54 [56]

The Waimauku transaction

The evidence relating to the Taylors’ state of affairs at the
time of the Waimauku transaction  [71]
The Judge’s findings  [76]
Was Mrs Taylor fraudulent in advancing $55,000 to the trust?              [78]
Section 54  [84]
Was the loan a gift?  [88]

The 2004 gift
           The circumstances of this gift  [90]           Was Mrs Taylor able to pay all her debts in March 2004?  [92]
           Was Mrs Taylor fraudulent in making the 2004 gift?  [108]
The Jeep purchase
The evidence relating to the Jeep purchase  [110]
           The Judge’s findings  [114]

Our evaluation [115]

The outcome [118]
Costs [123]

Introduction

In 2000, Bronwyn and Callum Taylor, having obtained legal advice from their solicitor, Tony Fortune, a senior partner at Fortune Manning, set up the CRI and BC Taylor Family Trust. The trustees were the Taylors and Fortune Manning’s trustee company, Fortune Manning Trustee Co Ltd (FMT). The first asset transferred to the trust was the Taylors’ family home in Mount Eden, Auckland. Over the next few years, the couple made gifts to the trust.
On 20 November 2006, Mrs Taylor was adjudged bankrupt. Two creditors proved in her bankruptcy. They were the Commissioner of Inland Revenue for $123,132.80 and Bronwyn Taylor Accounting Services Ltd (BTA) for $84,639. BTA was the company through which Mrs…

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.

Keep reading for free

Create a free CaseChat account to read Taylor v Official Assignee and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NZCA 630
Decision Date: 9 December 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal of Bronwyn Carol Taylor, Callum Robert Ian Taylor, and Fortune Manning Trustee Co Ltd, as former and/or current trustees of the C R and B C Taylor Family Trust, against the Official Assignee in Bankruptcy of the property of Bronwyn Carol Taylor, was allowed. The Court quashed the High Court judgment requiring the appellants to pay $227,771.80 and interest to the respondent and reversed the respondent's decisions to set aside the dispositions made by the bankrupt other than the decision setting aside the 2006 gift. The Court also quashed the High Court costs judgment and directed that costs in the High Court be redetermined in light of this judgment. The Court held that the Official Assignee was wrong in setting aside the five transactions in dispute before them, and the only transaction properly voided was the 2006 gift. The Court allowed the appeal, quashed the High Court judgment, reversed the respondent's decisions, and directed that costs in the High Court be redetermined.

Orders