Vervoort v Forrest - [2013] NZHC 590

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-6668 [2013] NZHC 590

IN THE MATTER OF Claims in Equity and for imposition of a constructive trust

BETWEEN EMILIE PETRONELLA CORADINA VERVOORT
Plaintiff

ANDRUSSELL FORREST, WILLIAM DUFFY AND RAYMOND DENNIS SPEARS Defendants

Hearing: 22 November 2012

Counsel: P T Finnigan for Plaintiff
P J McPherson for Defendants

Judgment: 26 March 2013

RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON (Dismiss Proceeding)

This judgment was delivered by me on 26 March 2013 at 4.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Romaniuk & Associates Law Offices, PO Box 105-763, Auckland
Hesketh Henry, Private Bag 92093, Auckland

VERVOORT V FORREST, DUFFY AND SPEARS HC AK CIV-2011-404-6668 [26 March 2013]

Introduction

[1] Before the Court is the defendants’ application for an order that this proceeding be dismissed. The application is made in reliance on High Court Rule
5.49 or in the alternative on r 15.1.

[2] The defendants, Messrs William Duffy, Russell Forrest and Raymon Spears are the trustees of the William Duffy Family Trust. The plaintiff, Ms Emilie Vervoort, was in a de facto relationship with Mr Duffy between 1999 and 2011 and she claims in her statement of claim that the Trust holds property, much of it located in Fiji, in which she is entitled to a share.1

[3] On 6 April 2011, Ms Vervoort and Mr Duffy signed a Deed of Release that complicates her claim. The Deed is relevant to the current proceeding for the following reasons:

a) Pursuant to the Deed, Ms Vervoort was paid $327,002.17 and she and Mr Duffy agreed to “release and discharge each other from any and all claims ... which they now have or at any time hereafter may have”. The Deed provides that the payment is full and final payment for any claim that she is entitled to for continuing maintenance or rights to property owned by Mr Duffy “or his trust”.

b) The Deed states that Ms Vervoort and Mr Duffy are domiciled in Fiji.

It states that the “Deed is governed by the laws of the Republic of the Fiji Islands” and that “[e]ach party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with
matters concerning this Deed.”

1 Ms Vervoort’s counsel acknowledges that her present claim in equity that led to the present application is a back-up to a separate relationship property proceeding that she has commenced under the Property (Relationship) Act 1976 in the Family Court.

c) Mr Duffy has initiated legal action in the High Court of Fiji to change the word “non-exclusive” to “exclusive” in the Deed. Ms Vervoort has filed a statement of defence and counterclaim in the Fijian proceeding seeking a declaration that the Deed is null and void and an order that Mr Duffy pay various damages to her.

[4] Ms Vervoort relies on three causes of action in her amended statement of claim, though they are rolled into one express cause of action.…

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 Vervoort v Forrest

Details

AGLC: Vervoort v Forrest [2013] NZHC 590
Case: [2013] NZHC 590
Decision Date: 26 March 2013

CaseChat Overview and Summary

The case of Vervoort v Forrest involved a plaintiff, Emilie Vervoort, who sought to have a constructive trust imposed on property held by the William Duffy Family Trust, of which Mr. William Duffy was a trustee, and which was governed by New Zealand law. Ms. Vervoort had entered into a Deed of Release with Mr. Duffy, releasing him from any claims he had, and she sought to have the Deed declared void or voidable. The defendants sought to have the case dismissed on the basis that New Zealand was not the appropriate forum to hear the case, and that there was no serious issue to be tried on the merits. The court found that there was a serious issue to be tried on the merits and that New Zealand was the appropriate forum for the trial. The court dismissed the defendants' application to have the case dismissed and ordered an initial case management conference. The plaintiff was entitled to costs on a 2B basis plus disbursements as fixed by the Registrar.

Orders