Whittle v Whittle - [2015] NZHC 2879

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001039 [2015] NZHC 2879

BETWEEN
GLENN RAYMOND WHITTLE

Plaintiff

AND

GLENN WHITTLE, ALEXANDRA JANE WHITTLE AND QUANTUM TRUSTEE COMPANY 1003 AS TRUSTEES OF THE HOJAG FAMILY TRUST

Defendants

Hearing: 3 September 2015

Appearances:

R B Hucker for the Plaintiff
C Patterson and A M Halloran for the Defendants

Judgment:

19 November 2015

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 19 November 2015 at 11.00 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Hucker & Associates, Auckland
Quinn Law, Auckland

C Patterson, Auckland

WHITTLE v WHITTLE & Anor [2015] NZHC 2879 [19 November 2015]

[1] The plaintiff, Glenn Whittle, separated from his wife, Alexandra Whittle, in March this year. They are endeavouring to reach agreement on the division of their assets and the interest they have in the assets of their family trust (of which both are trustees). They have not yet reached a resolution but negotiations between the couple’s solicitors are ongoing. In the meantime Mr Whittle is anxious to have payment of $158,955, which he says represents his share of a current account debt of
$317,910 that the family trust owes to the couple and for which he made demand on the trustees. As payment has not been forthcoming he has commenced this proceeding in which he seeks summary judgment against the trustees for his claimed share of the debt, plus interest.

[2] Mr Whittle deposes to his belief that there is no defence to his claim.

[3] The application is opposed. Mrs Whittle, who is effectively Mr Whittle’s only co-trustee - she is a trustee in her personal capacity and a trustee in her capacity as the director of the corporate trustee - contends that he is not entitled to payment on his unilateral demand.

[4] The application is made in reliance upon High Court Rule 12.2 which relevantly states:

(1) The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[5] In order to receive summary judgment, Mr Whittle must provide a sufficient evidential foundation to demonstrate his claim against the trustees to the sum claimed; show that the trustees have no arguable defence; and I must be satisfied that summary judgment should not be declined on the basis of the residual discretion.

Background

[6] In 2003 Mr Whittle set up a family trust of which they are beneficiaries. The trust is named the Hojag Trust. The Whittles are the trustees, together with a third

trustee, Quantum Trustee Company 1003 Limited. Ms Whittle is the director of that company.

[7] In 2006 the Whittles transferred ownership of their family home at Meadowbank to the trust. The home is the trust’s only asset. It is not in dispute that the trust’s acquisition of it resulted in a…

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 Whittle v Whittle

Details

AGLC: Whittle v Whittle [2015] NZHC 2879
Case: [2015] NZHC 2879
Decision Date: 19 November 2015

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was tasked with determining whether Glenn Whittle was entitled to summary judgment against the trustees of the Hojag Trust, namely his estranged wife, Alexandra Whittle, and Quantum Trustee Company 1003 Limited, to recover his share of a debt owed by the trust. The primary legal issue was whether the debt, amounting to $317,910, was held jointly or in tenancy in common by Glenn and Alexandra Whittle and if Glenn had the right to demand unilateral payment of his share. The court also needed to decide whether the trustees had any arguable defences to the claim and whether summary judgment should be withheld due to the residual discretion of the court.

The court found that there was insufficient evidence to determine the exact nature of the debt's ownership, whether it was held jointly or as tenants in common. The court highlighted that the circumstances surrounding the debt's creation and the lack of documentation made it difficult to ascertain the exact terms. The court also noted that the practical implications of calling up the debt were significant, potentially necessitating the sale of the trust's sole asset, the family home, which would impact both parties' interests. Furthermore, the court concluded that Glenn had not provided sufficient evidence to establish that the debt was repayable on demand. Without the unanimous agreement of all trustees to repay the debt immediately, Glenn's claim for unilateral payment was not substantiated. The court further held that the issue of set-off, proposed by Alexandra Whittle due to alleged damage caused by Glenn, was academic given the court's findings on the debt's nature and terms. Finally, the court declined to exercise its residual discretion to withhold summary judgment, as Glenn had not proven his entitlement to the debt.

The application for summary judgment was declined, and the matter was adjourned for further case management to facilitate a resolution of the remaining disputes. Costs were reserved in accordance with the Court of Appeal's judgment in NZI Bank Ltd v Philpott.

Orders