West v West - [2017] NZHC 3110

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002992 [2017] NZHC 3110

BETWEEN
ALLAN JACK WEST

Plaintiff

AND

GEOFFREY ALLAN WEST First Defendant

DAVID JOHN CAMERON WEST Second Defendant

THE PARTNERS OF LANGLEY TWIGG LAW

Third Defendants

Hearing: 26-29 September and 27 November 2017

Counsel:

DW Grove for Plaintiff
DM Kerr for First and Second Defendants
CL Bryant and NZ Thomson for Third Defendants

Judgment:

13 December 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 13 December 2017 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Vodanovich Law Ltd, Auckland.
Bannister & von Dadelszen, Auckland. Hesketh Henry, Auckland.
DW Grove, Auckland.
DM Kerr, Napier.

WEST v WEST [2017] NZHC 3110 [13 December 2017]

Table of Contents

Para No

The case [1] Background in brief [6] Unconscionable bargain? [18] Disability? [22] Undue influence? [49] Breach of fiduciary duty? [93] Negligence? [96] Conclusion [109] Late evidence [112] Costs [114]

The case

[1] Jack West is 95, albeit in excellent health for his age. Jack lives alone in rural Auckland on an 8.1 hectare property. In 2014 Jack transferred the property to his two adult sons, David and Geoffrey. David is 68; Geoffrey 67. David and Geoffrey paid nothing for the property, which is now worth approximately $1.9 million. However, Jack was to remain living at the property, David and Geoffrey were to meet Jack’s day-to-day “living requirements”, pay all expenses in relation to the property until Jack died, and be responsible for other matters too. Under the terms of Jack’s will before the transfer, David and Geoffrey would have inherited the property.

[2] Jack contends the property should be returned. He says its transfer constitutes an unconscionable bargain and is the product of undue influence, particularly in the absence of independent legal advice.1 Jack also contends the absence of legal advice involved negligence on the part of Mr Guy Wellwood, the solicitor acting on David and Geoffrey’s instructions. David and Geoffrey have also brought proceedings against Mr Wellwood’s firm, Langley Twigg. If the transfer is an unconscionable bargain or the result of undue influence, David and Geoffrey contend this reflects
Mr Wellwood’s negligence. Langley Twigg accepts Mr Wellwood should not have

acted for Jack and his sons, but denies causative negligence.

1 Breach of fiduciary duty is also alleged; see [93]–[95].

[3] Elements of this picture are arguably paradigmatic of an unconscionable bargain, undue influence or both. And yet—as will become apparent—there are significant contrary elements too. Jack is an intelligent former professional who “knows his own mind”. Jack was also the undisputed patriarch, whose wishes were frequently synonymous with instructions. And, Jack has a propensity for conflict in the event of disagreement, real or imagined. Sadly, he appears to enjoy it.

[4] Recent events help set the scene. Jack dismissed his barrister, Mr Grove, the week before closing submissions.2 He accused Mr Grove of, among other things, “callousness”, “attempting…

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 West v West

Details

AGLC: West v West [2017] NZHC 3110
Case: [2017] NZHC 3110
Decision Date: 13 December 2017

CaseChat Overview and Summary

The case of West v West involved Jack West suing his two sons, David and Geoffrey, and their solicitor, Langley Twigg, over the transfer of Jack's property to David and Geoffrey in 2014. Jack alleged the transfer was an unconscionable bargain, the result of undue influence, and that Langley Twigg was negligent in acting for all parties. The sons also sued Langley Twigg for negligence. The court found that Jack was not under disability, his sons did not unduly influence him, and the transfer was not an unconscionable bargain. The court also found that Langley Twigg was negligent in acting for all parties, but that this negligence did not cause Jack loss, as he would have insisted on the transfer regardless of independent legal advice. All causes of action failed and were dismissed. The court also found that late evidence appended to Jack's closing submissions was not considered due to issues with relevance, identity, and scandalous content. Costs will be dealt with separately.

Orders