Bethell and Another v Bethell

JurisdictionNew Zealand
JudgeRanderson
Judgment Date05 September 2014
Neutral Citation[2014] NZCA 442
Docket NumberCA33/2014
CourtCourt of Appeal
Date05 September 2014
BETWEEN
Victoria Elizabeth Bethell as Administrator of the estate of R M Bethell and Maria Gael Bethell
Appellants
and
Christine Anne Bethell
Respondent

[2014] NZCA 442

Court:

Randerson, Wild and White JJ

CA33/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against the granting by the High Court (HC) of an order for specific performance requiring transfer of land as provided for in a deed of family arrangement — deed of arrangement modified will — will left principal block of land to testator's son but provided that the respondent daughter was entitled to a life interest in 10 acres of land including an area known to the family as the camping ground — further provided that if subdivision could be achieved the respondent would be entitled to have the area transferred to her absolutely — deed provided that respondent could call for an allotment of up to 10 acres in the area known as the camping grounds near the main road at any time during son and daughter's joint lives if subdivision could be achieved — respondent gained subdivision consent but her brother refused to transfer the 10 acres claiming she was only entitled to the smaller area comprised in the camping ground — what was the correct approach to construing a deed of family arrangement — whether the respondent had a right to specific performance — whether one of the appellants had a prior equitable interest by virtue of a Property (Relationships) Act 1976 agreement.

Counsel:

S A Grant and H E McQueen for Appellant

R J Thompson for Respondent

  • A The application by the appellants for leave to adduce further evidence on appeal is dismissed.

  • B The appeal is dismissed, save that the respondent is liable for the reasonable costs of obtaining the subdivision consent.

  • C The appellants must pay costs to the respondent for a standard appeal on a Band A basis with usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No

Introduction

[1]

The issues

[13]

The evidence in more detail

[17]

John's Will

[19]

The deed of family arrangement

[23]

(a) What area of land was Chrissie entitled to under the Deed?

[27]

The approach to interpretation adopted in the High Court

[27]

Discussion of the interpretation approach

[33]

(b) What were the respective rights and obligations of Chrissie and Ross under the Deed?

[52]

Chrissie's rights

[52]

Ross's obligations

[64]

Summary to this point

[69]

The evidence supporting the Judge's approach to the determination of Chrissie's interest in the 10 acres

[70]

(c) Does Maria have any interest in the White House and the quarter acre of land in priority to Chrissie's rights or any entitlement to compensation?

[79]

Analysis

[86]

(d) Who was responsible for the costs of the subdivision for Chrissie's allotment?

[91]

(e) If the appeal succeeds, does Chrissie have a claim nevertheless to a life interest in the land under the Will?

[93]

Application to adduce further evidence

[94]

Result

[99]

Introduction
1

This appeal involves disputed claims to 10 acres of land at Te Henga on Auckland's West Coast. The Bethell family settled in Te Henga in the 1860s on land adjoining Bethells Beach. In the 1890s, John Neale Bethell acquired several blocks of land including one described by the parties as the principal block. This comprises mostly steep, bush-clad coastal land.

2

Mr Bethell's grandson, also called John Bethell (John), inherited several blocks including the principal block. John and his wife Shirley had four children: Margaret, Trudy, Ross and Christine (Chrissie). On his death in 1985, John devised the principal block to Ross. As a result of earlier subdivisions and the creation of reserve areas, the principal block had by then reduced to approximately 223 hectares.

3

Two features of the remaining land in the principal block are relevant for present purposes. First, there is a relatively flat area known to the family as the camping ground adjoining Bethells Road. It was intended to become a camping ground but we were told it has not been used as such. The second feature is an area of land known as the clay patch. This derived its name from an area where clay was extracted for the purposes of an earlier subdivision. It forms part of the land adjoining the camping area but is separated from it by steeply rising land not suitable for building. However, the clay patch and some adjoining areas are relatively flat and provide potential building sites with extensive views of the sea.

4

Chrissie is the respondent in this appeal. John's devise of the principal block to Ross was subject to Chrissie having the right during her lifetime to rent at a nominal figure “ten (10) acres more or less together with the camp and shop buildings thereon (if any)”. John's Will further provided that if a subdivision could be achieved, Chrissie would be entitled to have the same 10 acres transferred to her absolutely.

5

Difficulties in the implementation of the Will led to a Deed of family arrangement in 1987, the interpretation of which lies at the heart of this appeal. Under the Deed, Ross agreed that Chrissie could call for “an allotment of up to 10 acres in the area known as the camping grounds near the main road”. The Deed provided that this area could be transferred to Chrissie as long as the local authority consent to its subdivision from the principal block was obtained during the joint lives of Ross and herself.

6

Chrissie's evidence, accepted by the High Court Judge, was that she called for 10 acres in 1991. She understood this would include the camping ground as well as the larger area in which the clay patch was located. She did not take any formal steps to enforce her interest in the 10 acres until 2005 when she lodged a caveat. In 2006 she applied for a subdivision consent in respect of the 10 acres she claimed. Although Chrissie obtained consent for the subdivision, Ross refused to transfer the land to her, maintaining she was only ever entitled to the land known as the camping ground. It is common ground that the camping ground has an area much less than the 10 acres referred to in both the Will and the Deed. It has been recently surveyed and has an area of two hectares or approximately five acres. At the time of the Deed, Ross understood the land area of the camping ground was between five and six acres.

7

Two other matters are relevant for present purposes. First, Ross and his first wife Maria separated in 1999. A house (known as the White House) was moved onto part of the 10 acre area claimed by Chrissie. It was located on part of the higher land in which the clay patch is located. In 2004, the year before Chrissie lodged her first caveat, Ross and Maria entered into an informal agreement purporting to give Maria a life interest in the White House and the quarter acre of land around it. The White House was initially let but Maria now lives there. The second relevant fact is that Ross died unexpectedly in 2008. He had earlier married Vicky who is the administrator of his intestate estate. She lives on the principal block in the house she and Ross formerly occupied. Maria and Vicky are the appellants in this appeal.

8

In the High Court, Chrissie alleged that Ross's refusal to transfer the 10 acres to her was a breach of the Deed or amounted to a breach of trust. She sought an order for specific performance and the transfer of the land to her. Maria counter-claimed for a declaration that she had an equitable interest in the White House and surrounding land that took priority over any interest that Chrissie might have in the land. Vicky also counter-claimed for a declaration that the whole of the principal block, including the area claimed by Chrissie, should vest in her to the extent of one-third and in Ross's children to the extent of two-thirds under the Administration Act 1969.

9

There were two principal defences to Chrissie's claim:

  • (a) On the true interpretation of the Deed, she was not entitled to any more than the camping ground itself.

  • (b) If she were entitled to 10 acres, the area of the land was not sufficiently defined to be enforceable by court order.

10

Other defences raised included laches (delay), hardship, and other issues making it inequitable to grant relief. There were also various claims and counter-claims for an accounting of profit and compensation which need not be detailed at this stage.

11

In the High Court, Courtney J upheld Chrissie's claim. 1 She made an order for specific performance requiring Vicky to convey to Chrissie the lot comprising 4.047 hectares (10 acres) for which she had obtained subdivisional approval. The counter-claims by Maria and Vicky were dismissed. The Judge also dismissed Chrissie's claim for equitable compensation (sought in addition to specific performance) and Maria's claim for compensation for work done on the White House.

12

Finally, the Judge found that Ross (or more precisely his intestate estate) was responsible for the costs of the subdivision necessary to provide Chrissie her 10 acres.

The issues
13

The issues on appeal are somewhat narrower than those in the High Court. In particular, Ms Grant on behalf of the appellants accepted that, if we were to conclude that the Judge's interpretation of the Deed was correct and that the land area was sufficiently defined, the other grounds raised in the High Court in opposition to an order for specific performance were not pursued on appeal. For her part, Chrissie has not appealed against the dismissal of her claim for equitable compensation in addition to an order for specific performance. However, Maria maintained an appeal against the refusal of compensation for money she spent on the White House.

14

Mr Thompson also advanced an...

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