Vernon v Public Trust

Case [2016] NZCA 388


IN THE COURT OF APPEAL OF NEW ZEALAND

CA517/2015
[2016] NZCA 388

BETWEEN

ASHLEY WILLIAM VERNON AND BEVERLEY KAY VERNON
Appellants

AND

PUBLIC TRUST
Respondent

Hearing:

28 June 2016 (further submissions received on 11 July 2016 and 18 July 2016)

Court:

Ellen France P, Harrison and Wild JJ

Counsel:

A C Beck for Appellants
H N McIntosh and H M Macfarlane for Respondent

Judgment:

9 August 2016 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.

BThe appellants are ordered to pay the respondent’s costs for a standard appeal on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Contents

Para No

Introduction  [1]
Facts  [5]
High Court  [17]
Decision  [26]

Undue influence  [26]
Fiduciary duty  [32]
Breach of fiduciary duty  [43]
Limitation  [56]
Beverley’s liability  [65]

Result  [69]

Introduction

  1. On the day his wife Naomi died in March 2006, the late Kenneth Vernon left his home.  He went to live with his son and daughter-in-law, Ashley and Beverley Vernon.  Kenneth was then aged 86 years and was not in good health.  He had previously executed an enduring power of attorney (the EPOA) in Ashley’s favour. 

  2. Kenneth’s assets at that time, represented primarily by his home which he sold a few months later, amounted to about $329,000.  By the time Kenneth moved into a rest home in October 2008 his assets were reduced to a bank balance of $11,000.  In exercise of his powers under the EPOA, Ashley had controlled Kenneth’s bank accounts throughout this period.

  3. Following Kenneth’s death in 2011, the Public Trust was appointed as the replacement administrator of his will.  In 2014 it issued a proceeding in the High Court against Ashley and Beverley (collectively the Vernons) to recover the funds withdrawn from Kenneth’s account, alleging that Ashley had wrongly misapplied them for the joint benefit of himself and Beverley.  The Vernons denied liability and the claim went to trial.

  4. Kós J found that Ashley had exercised undue influence over Kenneth.[1]  Alternatively, he found Ashley had breached his fiduciary duties to his late father or had acted unconscionably towards him.  The Vernons were  liable to restore all misapplied funds to the estate.  Judgment was entered against them jointly for $280,354 plus interest and costs.  The Vernons now appeal.

Facts

  1. The material facts are not in dispute. 

  2. In December 2005 Kenneth signed his last will appointing Ashley and Kenneth’s brother-in-law as his trustees and executors.  He divided his residual estate, should Naomi predecease him, equally between Ashley and Kenneth’s grandson, Dante.  Ashley was aware of the terms of the will from the time of its execution.  Shortly afterwards, Kenneth appointed Ashley as his EPOA under the provisions of the Protection of Personal and Property Rights Act 1988 (PPPRA).  The appointment was not made on the ground that Kenneth was mentally incapable and nor did the Public Trust allege that it was induced by Ashley’s influence.

  3. In the period…

Continue reading Vernon v Public Trust

Sign in free to access the full text

Details
AGLC
Vernon v Public Trust [2016] NZCA 388
Case
[2016] NZCA 388
Decision Date

CaseChat Overview and Summary

The Vernons appealed against a High Court judgment which found them liable to restore funds withdrawn from Kenneth's account. The Public Trust had issued a proceeding against Ashley and Beverley for the misapplied funds, alleging that Ashley had wrongly misapplied the funds for the joint benefit of himself and Beverley. The Vernons denied liability and the claim went to trial. Kós J found that Ashley had exercised undue influence over Kenneth or had breached his fiduciary duties to his late father or had acted unconscionably towards him. The Vernons were liable to restore all misapplied funds to the estate. Judgment was entered against them jointly for $280,354 plus interest and costs. The Vernons appealed. The Court of Appeal dismissed the appeal and ordered the Vernons to pay the Public Trust's costs for a standard appeal on a band A basis together with usual disbursements. The appeal failed for the following reasons. The undue influence claim was unsustainable because the transactions did not occur with Kenneth's consent. However, the judgment could be sustained on the alternative findings of breach of fiduciary duty and unconscionability. The Court of Appeal rejected the submission that the enduring power of attorney (EPOA) did not give rise to an obligation upon the donee enforceable in equity. The relationship created by an EPOA is one of principal and agent. Unless the instrument or statute required otherwise, the agent must discharge his or her duties towards the principal with the utmost loyalty, honesty and good faith. And he or she must act always in the donor's best interests. The Court of Appeal found that the EPOA created a fiduciary relationship between Ashley and Kenneth and that Ashley breached his fiduciary obligations by spending Kenneth's money for his own benefit. The appeal against the finding of Beverley's accessory liability for knowing receipt must also fail. Beverley was aware that the transactions entered into by Ashley were wrongful and she benefited fully and equally with Ashley from the misappropriated payments.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.