Vervoort v Forrest

Case [2016] NZCA 375


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IN THE COURT OF APPEAL OF NEW ZEALAND

CA272/2015
[2016] NZCA 375

BETWEEN

EMILIE PETRONELLA CORADINA VERVOORT
Appellant

AND

RUSSELL FORREST, WILLIAM DUFFY AND RAYMOND DENNIS SPEARS AS TRUSTEES OF THE WILLIAM DUFFY FAMILY TRUST
First Respondents

WILLIAM DUFFY
Second Respondent
Hearing:

13 April 2016

Court:

French, Asher and Williams JJ

Counsel:

P T Finnigan for Appellant
No appearance for Respondents

Judgment:

4 August 2016 at 4.00 pm

JUDGMENT OF THE COURT

A        The appeal is dismissed.

B        There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

  1. This appeal arises out of a 12-year relationship between the appellant, Emilie Vervoort, and the second respondent, William Duffy.  It follows the delivery of a judgment by Ellis J on 23 April 2015.[1]  Ellis J rejected a number of Ms Vervoort’s claims to assets held in Mr Duffy’s family trust, leaving only a small number of assets as relationship property.  Ms Vervoort has appealed that decision.

    [1]Vervoort v Spears [2015] NZHC 808, [2015] NZFLR 525 [High Court decision].

  2. It is a feature of this appeal that Mr Duffy, who had unsuccessfully protested jurisdiction,[2] took no steps to defend the claims in the final hearing in the High Court or in this appeal.  The other first respondents, Russell Forrest and Raymond Spears, the former and present trustees of the William Duffy Family Trust, also took no steps, although the former swore an affidavit for Ms Vervoort.

  3. There were four key arguments presented to us on this appeal.  First, it was submitted that Mr Duffy’s trust, which owned a very considerable number of assets, was a sham “from inception” or became a sham.  The second submission was that the Judge’s determination Ms Vervoort did not have an interest as a constructive trustee in the property of the trust was wrong.  The third was that Mr Duffy by his actions created an estoppel, precluding the trust from denying Ms Vervoort an interest in certain assets.  The fourth was that, if any of Ms Vervoort’s arguments were established, orders should be made in relation to property.

Background

  1. The William Duffy Family Trust (the Trust) was formed on 1 August 1994 by Mr Duffy as settlor, well before any relationship with Ms Vervoort began.  We will refer to the details of the Trust in due course.  The original trustees were Mr Duffy and Mr Forrest.

  2. There are no current financial statements of the Trust that have been brought to our attention.  However, accounts had been prepared in the past.  The Trust has owned, and presumably continues to own, significant assets in New Zealand and Fiji.

  3. Mr Duffy, or the Trust, also has or had other assets including shares in a container business, United Container Services Ltd, shares in a property company, Curries Proprietary Ltd, and shares in other companies including Riverhead Pub Cruises Ltd, Moduco Ltd and Kings Klamps IP…

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Vervoort v Forrest [2016] NZCA 375
Case
[2016] NZCA 375
Decision Date

CaseChat Overview and Summary

This appeal arose from the relationship between Emilie Vervoort and William Duffy. Vervoort sought to have a number of assets held by Duffy's trust classified as relationship property under the Property (Relationships) Act 1976. The High Court rejected her claims, and she appeals that decision. The Court of Appeal was required to decide if the trust was a sham, whether there was a constructive trust over the trust's assets, whether there was a promissory estoppel, and if so, what orders should be made. The Court of Appeal found that the trust was not a sham, that a constructive trust could theoretically arise but that Vervoort's contributions were not sufficient to succeed, and that there was no promissory estoppel. The appeal is dismissed and there is no order for costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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