Thompson v Bradley - [2016] NZHC 922

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2015-441-093 [2016] NZHC 922

BETWEEN
SHELLEY MARIE THOMPSON AND

RANGITAUIRA WAYNE DAVIS Plaintiffs

AND

DONALD BRADLEY AND NAPIER INDEPENDENT TRUSTEES LIMITED Defendants

Hearing: 28 April 2016

Counsel:

E M Bate for the Plaintiffs
P N Ross for the Defendants

Judgment:

6 May 2016

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] This is an application by the plaintiffs for summary judgment for the sum of

$309,503.51 together with interest and costs.

[2] The plaintiffs are husband and wife, and Ms Thompson is the daughter of the defendant Mr Bradley. The defendants are the trustees of a trust known as the Don Bradley Family Trust (the Trust).

[3] The plaintiffs paid $317,503.51 to the defendants in December 2007. The transaction was recorded in a Deed of Acknowledgement of Debt dated 18 December
2007 (the Deed). The Deed recorded that the plaintiffs had advanced the money to the defendants to enable the defendants to purchase a property in Kokohu Road, Nuhaka (the property). The Deed provided that the amount advanced (the Principal Sum) was repayable by the defendants, in whole or in part, upon demand. The defendants were permitted to repay part or all of the Principal Sum in advance of any
demand being made, provided any lump sum repayment exceeded the sum of $100.

SHELLEY MARIE THOMPSON AND RANGITAUIRA WAYNE DAVIS v DONALD BRADLEY AND NAPIER INDEPENDENT TRUSTEES LIMITED [2016] NZHC 922 [6 May 2016]

[4] The Deed also included the following provisions:

3 Interest payable upon demand

3.1If the [plaintiffs make] demand, the [defendants] shall pay interest to the [plaintiffs] on the Principal Sum outstanding from time to time or on any part. The [plaintiffs] may give notice of demand to pay interest to the [defendants] on or before the 1st March in any year, otherwise the [defendants] shall not be liable to pay the [plaintiffs] any interest in respect of the 12 months ending 31st March in that year. The [defendants] shall pay the interest to the [plaintiffs] in one sum on the 31st March in any year in respect of the previous 12 months calculated at a rate not greater than 12% per annum, as is specified in the notice of demand.

…

6 Limitation of liability

6.1The liability under this Deed of the [defendants] shall not be an unlimited personal liability but shall be limited to the assets from time to time of the Don Bradley Family Trust (evidenced by Deed dated 18 December 2007 (“the Trust”)). It is agreed that any order execution or judgment obtained against the [defendants] in the capacity as trustee of the Trust shall only be capable of being satisfied out of assets from time to time of the Trust coming into the hands of the trustee in the proper administration of the Trust.

7The [defendants] shall and will whenever called upon so to do give and execute in favour of the [plaintiffs] a good and registerable mortgage (“the Mortgage”) over [the property]…to secure payment…

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 Thompson v Bradley

Details

AGLC: Thompson v Bradley [2016] NZHC 922
Case: [2016] NZHC 922
Decision Date: 6 May 2016

CaseChat Overview and Summary

The plaintiffs, Shelley Marie Thompson and her husband, sought summary judgment against the defendants, Donald Bradley and Napier Independent Trustees Limited, to recover the balance of a loan made in 2007 to enable the purchase of a property. The loan was recorded in a Deed of Acknowledgement of Debt, which provided for interest and repayment of the principal on demand. The defendants opposed the application, contending that the Deed did not accurately reflect the true agreement, which was that the loan would not be called upon during Mr Bradley's lifetime. The defendants argued they were entitled to rectification of the Deed. The Court found that the Deed was clear and unambiguous and there was no plausible argument that it did not accurately record the agreement of the parties. The Court further found that there was no evidence of a collateral oral agreement to support the defendants' contention. The Court concluded that the plaintiffs were entitled to summary judgment for the principal and interest for the first financial year, but the remaining interest claims would proceed to trial. Judgment was entered for the plaintiffs for the principal and costs, and for the interest claimed for the first financial year. The remaining interest claims were refused.

Orders