Wolfe v Wolfe - [2021] NZHC 2878

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-075-95

[2021] NZHC 2878

BETWEEN GEOFFREY LYALL WOLFE and JAMES ROGER WOLFE
Plaintiffs/First and Second Counterclaim Defendants

AND

WILLIAM THOMAS WOLFE

Defendant/Counterclaim Plaintiff

MICHAEL WOLFE

Third Counterclaim Defendant

Hearing: 30 June 2021 – 2 July 2021, further submissions 15 July 2021

Appearances:

S Elliott for the Plaintiffs and Counterclaim Defendants ML Dillon for the Defendant and Counterclaim Plaintiff

Judgment:

28 October 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 28 October 2021 at 12.30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date…………………..

Solicitors: Insight Legal Limited, Warkworth
Miller Poulgrain, Thames

To:S Elliott, Auckland M Dillon, Hamilton

WOLFE v WOLFE [2021] NZHC 2878 [28 October 2021]

Introduction [1]

Factual background – more detail [8]

The pleaded claims [59]
Observations on the evidence [69]

Proprietary estoppel [78]

Legal principles [78]
Evidence as to Michael’s alleged promise [93]

Did Michael make the promise as alleged? [102] Observations on reliance and detriment, and any equity binding James and Geoffrey [112]

Constructive trust claim [130]

Legal principles [132]

Analysis [138]

Result and costs [141]

Introduction

[1] This dispute arises, like many unfortunately do, in a family context. The plaintiffs (Geoffrey and James) seek an order for possession of a property of which they are the registered proprietors, but in which the defendant (William) and his family have lived for some 12 years.1

[2] William and James are brothers. The property (which I will refer to in this judgment as the “Waiomu Property”) was owned by their late mother Susan. Sadly, Susan passed away in 2008 not long after being diagnosed with brain cancer. Her will left her estate (largely comprising the Waiomu Property and a property in Thames (the “Thames Property”)) to her husband Michael (the third counterclaim defendant), to whom she had been married for 19 years. Michael is accordingly William and James’ step-father.

[3] Susan, Michael, William and James were all living at the Waiomu Property when Susan died.2 James moved out a couple of years later in 2010. In 2015, Michael was arrested and later sentenced to a term of imprisonment. William, his partner and their children have continued to live at the Waiomu Property to the present day.

[4] William says this arrangement came about as a result of a promise Michael made to him (and James) shortly after Susan’s death, to the effect that Michael would hold the Waiomu and Thames properties for his step-sons during his lifetime (the Waiomu Property for William and the Thames Property for James), and each would then pass to them upon his death. William says that on the basis of this promise (which he says James was aware of and did not disagree), he did not bring a claim for provision from Susan’s estate pursuant to the Family Protection Act 1955, and instead continued to reside at the Waiomu Property, to which he has made more than minor contributions.

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 Wolfe v Wolfe

Details

AGLC: Wolfe v Wolfe [2021] NZHC 2878
Case: [2021] NZHC 2878
Decision Date: 28 October 2021

CaseChat Overview and Summary

This case concerns a dispute over a property, known as the Waiomu Property, which arose between Geoffrey, James, and William Wolfe. The dispute was initiated when Geoffrey and James, who are the registered proprietors of the property, sought an order for possession against William, who had been residing at the property with his family for over 12 years. William counterclaimed, alleging that he was the equitable owner of the property based on a promise made by Michael, their late mother's husband and William and James' step-father, that the property would pass to William and James upon Michael's death. The court found that the promise was not sufficiently clear and that William had not incurred sufficient detriment as a result of his reliance on the promise. Consequently, William's counterclaim was dismissed, and an order for vacant possession was made, but with a four-month delay to allow William and his family time to arrange their affairs.

The court first addressed the elements of proprietary estoppel, which require a representation or assurance made to the claimant, reliance on it by the claimant, and detriment to the claimant as a consequence of their reasonable reliance. The court found that the promise made by Michael was not sufficiently clear, and that William had not incurred sufficient detriment as a result of his reliance on the promise. The court also found that even if the promise had been made, William's ongoing reliance on the promise was not reasonable, given that he was aware that Michael did not consider him to have any entitlement to remain at the property.

The court then turned to William's claim for a constructive trust, which also failed due to the lack of a sufficiently clear promise. The court found that William had not made the necessary contributions to the property that would give rise to a constructive trust, and that his expectation of receiving the property was not reasonable in all the circumstances.

Orders