Thomas v MacKintosh - [2021] NZCA 344

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA288/2020
[2021] NZCA 344

BETWEEN	PHILIP DEAN THOMAS Appellant
AND	JOHN BOWDEN MACKINTOSH AND MATTHEW CHADLOW HALL First Respondents
AND	ALISON MARGARET SYME, MARK WREFORD REED, SIMON THOMAS REED AND ELEANOR MARY MARR Second Respondents

Hearing:	25 May 2021
Court:	Kós P, Miller and Gilbert JJ
Counsel:	H A Evans and D R Weatherley for Appellant C A McVeigh QC and G M Brodie for First Respondents RJB Fowler QC and BRD Burke for First Named Second Respondent No appearance for Second and Third Named Second Respondents K W Clay for Fourth Named Second Respondent
Judgment:	27 July 2021 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed. We make the orders stated at [67] and [68].
BThe first named second respondent must pay the appellant costs for a standard appeal on a band B basis, with provision for second counsel and disbursements as fixed by the Registrar.

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REASONS OF THE COURT

(Given by Miller J)

During Norman Thomas’s lifetime, he and his son Philip built up a substantial farming operation in North Canterbury. His three children, and some of his grandchildren, did not agree about what ought to happen to the farms following his death in 2012. Litigation began shortly before he died and a variety of proceedings have been on foot ever since.
The parties reached agreement about the distribution of land, plant and equipment in a Heads of Agreement dated 20 September 2015. That agreement was founded on valuations which they accept. They did not agree about resulting adjustments among them. Churchman J resolved a large number of disputes in a wide‑ranging judgment delivered on an application by the first respondents, who are the executors and trustees of Norman’s estate, for directions.[1] The parties accept almost all of the Judge’s directions. This appeal concerned two of them. Shortly before the hearing the parties settled one ground of appeal, leaving only one which we must decide. At the end of this judgment we record consent orders on the first ground.[2]
[1]Mackintosh v Thomas [2020] NZHC 860 [Judgment under appeal].
[2]Consent orders were made at the hearing in a related appeal, CA280/20, disposing of an appeal and cross-appeal in that proceeding. We need not record them here.
The second ground concerns the interpretation of a provision in the Heads of Agreement dealing with refinancing of bank debt on the transfer and vesting of land. It is a dispute about accounting for bank debt which must be refinanced on dissolving the ND and PD Thomas Partnership (“the Partnership”), which the appellant, Philip Thomas, ran with his father and later with the trustees. Philip’s sisters, the second respondents Alison Syme and Eleanor Marr,[3] were not members of the Partnership, but they are the sole beneficiaries of Norman’s estate, an asset of which is his interest in the Partnership. Hence the conflict. If Philip is right the estate must pay an estimated net $227,095.50…

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 Thomas v MacKintosh

Details

AGLC: Thomas v MacKintosh [2021] NZCA 344
Case: [2021] NZCA 344
Decision Date: 27 July 2021 at 11.00 am

CaseChat Overview and Summary

This case involved an appeal regarding the interpretation of an agreement, the Heads of Agreement, which was signed by the parties to settle disputes arising from the estate of Norman Thomas. The dispute centered around the refinancing of a bank debt that was to be refinanced upon the transfer and vesting of land. The appellant, Philip Thomas, argued that he should be credited with the funds introduced to refinance the mortgage, while the respondents, including Alison Syme, argued that Philip should bear the full cost of refinancing the mortgage. The Court of Appeal allowed the appeal and found that the Heads of Agreement did not intend for Philip to bear the full cost of refinancing the mortgage. Instead, the Court found that Philip should be credited with the funds introduced to refinance the mortgage and discharge the Partnership's obligations to the Bank under the mortgage. The Court also set aside the finding that Philip did not introduce any funds to meet interest payments in 2014 and 2015 and the direction that Philip was not entitled to credit for sums paid from the Partnership bank account in the 2014 and 2015 years. The Court directed that the orders made in the Court below are varied accordingly, and Alison must pay Philip costs for a standard appeal on a band B basis, with provision for second counsel and disbursements as fixed by the Registrar.

Orders