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.
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.
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
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.
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.
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…
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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AGLC
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.