AThe appeal is dismissed.
BThe appellant must pay the respondents’ costs for a standard appeal on a band A basis together with usual disbursements.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

The issue in this appeal is whether a party who is sued in negligence for breaching a duty of care by two of three registered owners of a residential property held in trust has an unassailable defence to the claim because the third owner and co‑trustee did not consent to or participate in the proceeding when filed.
Toogood J answered that question in favour of the plaintiffs, Martin and Vanessa Cadman, in dismissing an application to strike out the proceeding.[1] The defendant, Peter Visini, appeals on a number of grounds. All emanate from a proposition that the third owner, Peter Wood, was at the time the proceeding was issued a co-trustee who should have joined as a plaintiff; and that without his participation the Cadmans’ claim cannot possibly succeed.

Background

[1]Cadman (as Trustees of the Cadman Family Trust) v Visini HC Auckland CIV-2009-404-7925, 30 May 2011.

In August 1995 the Cadmans settled the Cadman Family Trust. They appointed themselves and Mr Wood as trustees. In that capacity the Cadmans and Mr Wood acquired a residential property at Coatesville, near Auckland.
Some three years later the Cadmans and Mr Wood entered into an oral contract with P J Visini Architectural Services Ltd to supervise construction of a home on the property. The agreed terms were later formalised in writing but a written contract was not executed. Construction of the house was completed in December 1999.
In 2005 Mr Wood advised the Cadmans of his wish to retire. The trust deed provided only for removal, not retirement, of trustees. Thus s 45 of the Trustee Act 1956 applied. The Cadmans were required to consent by deed to Mr Wood’s discharge. In 2007 the parties prepared a deed of retirement for Mr Wood and the appointment of Northplan Trustees Ltd as a new trustee. The Cadmans, Northplan and Mr Wood signed the deed. But the Cadmans’ signatures were not witnessed.
Toogood J held that the document did not take effect as a deed. That was because it failed to comply with the requirements of s 4 of the Property Law Act 1952, which was then in force, requiring each signature to be witnessed by at least one person. No steps were taken subsequently to transfer title to the property from the Cadmans and Mr Wood jointly to the Cadmans and Northplan. Northplan was later struck off the Companies Register.
The Cadmans never obtained a code compliance certificate…

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 Visini v Cadman

Details

AGLC: Visini v Cadman [2012] NZCA 122
Case: [2012] NZCA 122
Decision Date: 29 March 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Peter Joseph Visini against Martin Leigh Cadman and Vanessa Jane Cadman in the case of Visini v Cadman. The appeal centred on whether the Cadmans, who were two of three trustees of a residential property held in trust, could successfully pursue a negligence claim against Visini for breaching a duty of care without the participation of the third trustee, Peter Wood, at the time the proceeding was filed. The High Court had dismissed an application to strike out the proceeding in favour of the plaintiffs, and Visini appealed this decision. The core legal issue before the Court was whether the absence of the third trustee, Peter Wood, at the time the proceeding was filed, constituted an unassailable defence to the claim brought by the Cadmans.

The Court of Appeal considered several arguments advanced by Visini’s counsel, who contended that Peter Wood, as a co-trustee, should have joined as a plaintiff in the proceeding, and that without his participation, the claim could not succeed. The Court, however, found that Peter Wood's consent to the proceeding, given after it was filed, was sufficient to validate the claim under Rule 4.24 of the High Court Rules. The Court held that one trustee could consent to another trustee’s decision to issue the proceeding and that all trustees need not be named as parties in the proceeding. Additionally, the Court rejected the notion that the requirement for consent under Rule 4.24 must be fulfilled before the proceeding is issued, stating that a retrospective consent aligns with the rule's purpose of facilitating just, speedy, and inexpensive resolution of disputes.

Ultimately, the Court of Appeal dismissed Visini’s appeal and affirmed the High Court's decision that the Cadmans were entitled to proceed with their claim. The Court ordered Visini to pay the respondents' costs for the appeal on a standard band A basis along with usual disbursements.

Orders