Trainor (aka Tofilau) v Leotuki - [2020] NZHC 3121

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002536

[2020] NZHC 3121

BETWEEN
RONGOPAIWAHINE LOIS TRAINOR

(formerly known as RAEWYN LOUISE TOFILAU and also known as RAEWYN TRAINOR)

Plaintiff

AND

TIMOTHY JUNIOR LEOTUKI

First Defendant

STEVE TOFILAU
Second Defendant

NICOLAU ALEX TOFILAU

Third Defendant

Hearing: 16, 17 November 2020

Appearances:

N W Woods for Plaintiff U Kuddus for Defendants

Judgment:

25 November 2020

JUDGMENT OF VENNING J

This judgment was delivered by me on 25 November 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Rice Craig, Papakura
Inder Lynch Lawyers, Papakura

TRAINOR v LEOTUKI [2020] NZHC 3121 [25 November 2020]

TABLE OF CONTENTS

Introduction [1]

Background [5]

Procedural history [19]

The plaintiff’s claim [25]

The defendants’ response [26]

Witnesses [28]

Issues  [29]
The deeds of debt  [31]
What was the family arrangement the defendants rely on?  [40]
Did the defendants provide any consideration?  [63]

Promissory estoppel [73]

Acquiescence [96]

Result – deeds of debt  [103]
Order for sale of the property  [104]
Extent of the share  [106]
Nature and location of the property  [107]

Other co-owners [108]

Hardship [109]

Contributions [110]

Other matters [112]

Orders [119]

Costs [120]

Introduction

[1] This is a sad case. A mother is suing three of her four sons. At issue is a modest property at 29 Leaver Place (Leaver Place), Weymouth, which they all have an interest in, and the status of debts the sons owe their mother in relation to the property.

[2] The case and the issues underlying it should have been capable of resolution. There was a settlement following an earlier mediation. Implementation of the settlement agreement was, however, subject to finance, which the defendants were not able to obtain. Matters have subsequently broken down.

[3] Rongopaiwahine Lois Trainor, also known as Raewyn Trainor, the plaintiff, seeks orders under the Property Law Act 2007 (the PLA) for sale of the property and also judgment for the debts. Timothy Junior Leotuki and Steve Tofilau, the first and second defendants, agree the property has to be sold but seek a right of first refusal, and dispute any liability to the plaintiff in relation to the debts.

[4] The third defendant has taken no steps since the mediation and is not represented. A fourth son, Taroi Tofilau, has settled all issues with his mother.

Background

[5] The plaintiff began living with Tim Tofilau (Tim Sr) in 1969. At the time Tim Sr was 40 years old. The plaintiff was 18 years old. They later married in June 1971.

[6] Raewyn and Tim Sr had four children – Timothy (Tim Jr), born 15 September 1970; Steve, born 1 December 1971; Nicolau, born 7 April 1973; and Taroi, born 11 July 1981.

[7]Leaver Place was purchased and settled as a joint family home in 1975.

[8] In 1983/1984 the plaintiff separated from Tim Sr and went to Australia. Tim Sr was responsible for the day-to-day care…

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.

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Details

Case: [2020] NZHC 3121
Decision Date: 25 November 2020

CaseChat Overview and Summary

The case of Trainor (aka Tofilau) v Leotuki involves a dispute between a mother, Rongopaiwahine Lois Trainor, and three of her four sons regarding a property at 29 Leaver Place, Weymouth. The sons, Timothy Junior Leotuki, Steve Tofilau, and Nicolau Alex Tofilau, are the defendants. The primary issues in this case include the enforceability of deeds of debt, the applicability of family arrangements, promissory estoppel, and the sale of the property under the Property Law Act 2007.

The court found that there was no valid family arrangement under which the plaintiff agreed not to call up the debts acknowledged in the deeds of debt. The court rejected the defendants' argument that the plaintiff would never call up the debts, stating that there was no clear evidence supporting such an arrangement. The court also dismissed the defendants' claims of promissory estoppel and acquiescence, finding that the defendants had not acted to their detriment or relied on any representation that the debts would not be called up.

The court ruled that the plaintiff is entitled to judgment for the principal sum of $68,250 against each of the three defendants, together with interest at the rate of 5.75 per cent from 1 April 2018. The court also ordered the sale of the property, noting the plaintiff's financial need and the defendants' acceptance that the property must be sold. The court rejected the defendants' request for a right of first refusal on the plaintiff's quarter-share and ordered that the proceeds of the sale be distributed among the parties according to their legal shares in the property. Additionally, the court ordered the defendants to pay the plaintiff's costs on a 2B basis together with disbursements as fixed by the Registrar.

Orders