CHAMBERS v THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED [2023] NZHC 2084 [7 August 2023]

CHAMBERS v THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED [2023] NZHC 2084[7 August 2023]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECIV-2021-442-036[2023] NZHC 2084UNDER the equitable jurisdiction, Law Reform(Testamentary Promises) Act 1949 andFamily Protection Act 1955IN THE MATTER of the estate of DENIS EDWINCHAMBERS Deceased formerly ofRichmond, NelsonBETWEEN CINDY MARY CHAMBERSPlaintiffAND THE NEW ZEALAND GUARDIANTRUST COMPANY LIMITEDDefendantLYNETTE ANN CHAMBERSInterested PartyHearing: 17-18 April 2023Appearances: J C Ironside and S W Sansom for PlaintiffA R Gilchrist for DefendantG Pearson for Interested PartyJudgment: 7 August 2023JUDGMENT OF McQUEEN JTable of ContentsPara NosIntroduction [1]Background [4]History of the companies [6]Denis' wills and the estate [12]Value of CJL, CJEL and Handy 4 Ltd shares [17]The evidence [22]Cindy's evidence [24]Lynette's evidence [33]Cindy's reply evidence [46]Alan Chambers' evidence [48]June Chambers' evidence [52]Bryce Chambers' evidence [53]Ross Jackett's evidence [57]Mark Pahl's evidence [59]Timothy Scott's evidence [65]Gilbert Robertson's evidence [67]Cindy's claims [75]Claim under Law Reform (Testamentary Promises) Act [80]Cindy's submissions [82]Lynette's submissions [87]The Guardian Trust's submissions [90]Analysis [92]Common intention constructive trust claim [117]Cindy's submissions [119]Lynette's submissions [124]The Guardian Trust's submissions [129]Analysis [134]Family Protection Act claim [151]Implementation of relief [152]Result [161]Costs [162]Introduction[1] Mr Denis Chambers died on 17 September 2020. Ms Cindy Chambers, Denis'daughter and only child, has issued proceedings against her father's estate seeking toestablish that she should be recognised as the rightful owner of Denis' 40 per centshareholding (the shares) in each of Chambers and Jackett Ltd (CJL) and Chambersand Jackett Equipment Ltd (CJEL) (or collectively, the companies). Cindy's claimalleges the existence of a common intention constructive trust, such that the shareswould pass to her by or at the time of Denis' death. She brings alternative claims underthe Law Reform (Testamentary Promises) Act 1949 (the TPA), and the FamilyProtection Act 1955.[2] The defendant in this proceeding is the New Zealand Guardian Trust CompanyLtd, the named executor of Denis' will (the Guardian Trust). However, the GuardianTrust takes a neutral position on Cindy's claim. Rather, the claim is in factsubstantively opposed by the interested party in this proceeding, Mrs LynetteChambers, Denis' widow. Lynette relies on the terms of Denis' will, which leaves theshares to her as a part of the residual estate.[3] For the reasons set out below, I find that Cindy's claim under the TPA succeeds,and in the alternative, so does her claim based on a common intention constructivetrust. This judgment also addresses relief but only in principle. I have concluded thatin fairness to all the parties, there should be a further opportunity to make submissionsin relation to the implementation of relief.Background[4] I first set out the factual background insofar as it is undisputed.[5] Cindy, as noted, was Denis' only child. Cindy's mother was married to Denis,a marriage which ended in or about 1990, when Cindy was ten years old. Lynette andDenis met in 1992 and married in 1996. Lynette has two children from a formermarriage.History of the companies[6] In the 1930s, Denis' father, Edwin (Ted) Chambers started a contractingbusiness, ET Chambers. Subsequently, Denis' brother Alan Chambers and Denis' half-brother Eric Jackett also worked for the business. Alan was 16 months older and Eric12 years older than Denis. The company name was changed to Chambers & Jackettand was incorporated under the Companies Act 1955 on 5 May 1970. Denis initiallyworked elsewhere as a diesel mechanic but joined the company in 1975. Ted died inDecember 1984. Denis was gifted some shares in the company from Ted while Tedwas still alive, and some more after his death. Denis, Alan and Eric then owned 15,000shares each. Eric retired in 1994 and Denis and Alan bought him out of the companyunder an agreed arrangement.[7] The company was reregistered in 1997 as CJL with 45,000 shares. CJEL wasincorporated on 13 November 2017. CJL specialises in earthworks, subdivisions,drainage, and post-driving. Its main revenue stream comes from contractingoperations, but it also has small scale ad hoc livestock and fruit operations. CJELoperates under the umbrella of CJL, and owns the equipment used by CJL. The partiesrefer to CJL as the main business. CJEL's revenue stream is entirely from CJL for theuse of their plant and equipment, and therefore CJL has a corresponding expense toCJEL. In essence, the two companies form a single business, which is, and has alwaysbeen, a family business. They are long-established and well-known companies in theNelson and Tasman regions.[8] The current directors of both companies are Alan Chambers, Bryce Chambers(Alan's son and therefore Denis' nephew), and Cindy. Denis was also a director duringhis lifetime.[9] The companies register records that the shareholders of both CJL and CJELare:(a) Denis (40 per cent);(b) Alan (40 per cent);(c) Cindy and Motueka Trustee (No. 2) Ltd (10 per cent); and(d) Bryce (10 per cent).[10] Cindy and Bryce acquired their shares in two separate transactions, in 2015and 2019. In 2015, 2250 shares were transferred to each of Cindy and Bryce forconsideration of $150,000. In 2019, a further tranche of 2250 shares were transferredto each of Cindy and Bryce. The purchase of these shares was funded by a loan fromDenis and Alan respectively, with the debts then forgiven. These transactions wereformally recorded.[11] It is common ground that Cindy has performed work between approximately1999 and the present, as an employee of CJL. Cindy started off working in the field,driving the drainage chain trencher. She became Office Manager in 2011. Cindy isnow the Chief Executive Officer of the companies. After leaving school Bryce workedfor CJL as a machine operator. After a period overseas, he returned to Nelson,resuming work for CJL in 2009.Denis' wills and the estate[12] Denis made two wills of interest to the proceeding. The earlier will was madein 1997. Of relevance is that in this will, Denis left his estate (other than personalchattels) to Lynette and Cindy in equal shares and there was no specific mention ofthe shares in the companies.[13] The 1997 will was revoked when Denis made another will in 2007. Probatehas been granted for this will. Materially, Denis' estate consists of a half interest inwhat was his and Lynette's family home at Cushendall Rise, Richmond (the FamilyHome), household chattels, and parcels of shares. The total value of the estate issignificant. The will provides that the entire estate was to be left to Lynette, save Denis'half interest in the Family Home, which was left to Cindy, subject to an occupationalinterest in favour of Lynette.[14] Lynette's occupational interest is to end at the time of her death, or remarriage,'or any earlier event which brings this right to an end'. She must pay all outgoings onthe Family Home and the chattels within. She may sell the Family Home, but the saleproceeds remain subject to the half interest in favour of Cindy.[15] The shares in the companies are not specifically mentioned in the will, rather,they form part of the residual estate. The reasons why Denis made a new will in 2007are discussed later in the judgment.[16] The evidence from Mr Boyce on behalf of the Guardian Trust explains thatsome assets passed directly to Lynette through survivorship, to the value ofapproximately $2 million.Value of CJL, CJEL and Handy 4 Ltd shares[17] The parties have provided a valuation report for the purpose of this proceeding,prepared by Deloitte (the Deloitte Valuation Report) and dated 12 April 2022,presenting values as at 31 January 2022.[18] The Deloitte Valuation Report was commissioned for the purpose of providingan 'indicative fair market valuation of the shareholdings' held by Denis' estate in CJLand CJEL, as well as in Handy 4 Ltd (which owns a property portfolio). As alreadymentioned, Denis had a 40 per cent shareholding in each of CJL and CJEL, and a10 per cent shareholding in Handy 4 Ltd. Lynette owns the remaining shares inHandy 4 Ltd. The Deloitte Valuation Report assesses the indicative fair market equityvalue of individual shares as:(a) in CJL, as $113.18 per share;(b) in CJEL, as $0.34 per share; and(c) in Handy 4 Ltd as $21,812.45 per share.[19] This results in the following valuation of Denis' estate's shareholdings:(a) in CJL, as $2,037,240;(b) in CJEL, as $6,120; and(c) in Handy 4 Ltd, as $218,124.50.[20] Gilbert Robertson, the accountant for the companies, provided further advicein relation to the Deloitte Valuation Report. He agreed that it was not a fair reflectionof the true value of the shares for CJL because proper consideration was not given tothe land and equipment owned by the company. On Mr Robertson's reassessment, theshares in CJL held by Denis' estate were more properly valued at $3,394.000.[21] With the consent of the parties, an updated valuation of the Family Home wasprovided during the hearing, which assesses the current value of the Family Home is$2,000,000.The evidence[22] The present case is not one that depends on the assessment of voluminousdocumentary evidence, but rather the recollections of the parties as to important eventsin their family histories. Accordingly, their affidavit evidence is summarised in detailin this section. Cindy has provided two affidavits herself. Also filed in support of herclaim are affidavits from members of her family, a current and a former employee ofCJL and an affidavit from Mr Robertson, the companies' accountant. Lynette hasprovided two affidavits in defence of the claims. The Guardian Trust has providedaffidavit evidence in relation to the nature and size of the estate.[23] Cindy and Lynette were the only two witnesses to be cross-examined at thehearing. I incorporate discussion of their cross-examination as necessary below.Cindy's evidence[24] Cindy discusses in her evidence the family history and the origins of thecompanies. She began working for CJL in 1999 as a machine operator. She workedher way up through CJL, beginning to supervise and manage sites, and eventuallytaking on further responsibility from Denis. Cindy also began to help out in the officeand was 'fast-tracked' into a management position. Denis took her along to meetcontractors, professionals, and clients, and regularly expressed the view that she wouldbe the person to take over the companies from him, and that she and Bryce would oneday 'own the business'—rather than partners or wives coming into the business.[25] Cindy discusses championing health and safety requirements within CJLthroughout this time, to ensure the ongoing viability of the business She completedcourses out of working hours for this purpose. Again, throughout this time, Cindy saysshe was performing management functions, but being paid only as a labourer, at a rateof $9.00 per hour, which was less than other labourers. She says that Bryce wassimilarly being paid at a lower rate than other workers. She says that they were eachtold that they would not be paid a fair or full wage until they owned the company—and that they would not own the company until the shares were given to them whentheir fathers were to retire or die. She says that this plan was repeatedly discussed overthe years, and the discussions were always in regard to when they would receive theshares, rather than if they would receive them.[26] Cindy says she took over the office manager's responsibilities in 2011, as wellas manging Human Resources. She says she was the office manager on an informalbasis from August 2011 until June 2017, with financial accountability, includingpayroll, business management, contracts, and liaising with contractors and clients.Throughout this time Cindy says she was working overtime, as well as studying, andthat by November 2014 her pay had increased to $25 per hour. When Cindy's son wasborn prematurely in January 2016, she continued to work while in the hospital andbreastfeeding. Following this, she was being paid for ten hours a week (as a result ofreceiving parental income support) but working far more than ten, and not being paidfor that work. During this time, she says that Denis had no time for managementmeetings or decisions, given his workload of subdivision work. Cindy says that fromJune 2017 she has essentially been the general manager of CJL and CJEL. She hasfinal authority for all company expenditure.[27] Cindy also mentions her relationship with Mr Mark Pahl (who also gaveevidence). Cindy explains that Denis did not initially approve of her relationship withMr Pahl, although that changed over time. Cindy says that the only reason she canthink of for Denis changing his will in 2007 was because of this relationship. She saysthat under Denis' 1997 will, she and Lynette were each left a half share in Denis' estatebut this was changed in the 2007 will so that Cindy would only receive Denis' halfshare in the Family Home.[28] Cindy discusses the transfer both to her and Bryce of 2,250 shares in CJL at afair market price calculated by CJL's accountant. Cindy's shares were transferred tothe Cindy Chambers Trust on 30 December 2015. She then notes that she and Brycewere each offered a further 2,250 shares as a gift in 2019, in both CJL and CJEL. Thiswas because they were being debited interest on their overdrawn current accounts,meaning that their debt to CJL was increasing every year, and the dividends they werereceiving from the shares transferred in 2015 were not covering those interestpayments. Those shares were gifted on 1 June 2019.[29] Cindy notes a meeting that occurred on 3 September 2020, with her, Denis, andMr Robertson (the companies' accountant), who was helping look at what might needto be done in the future for the management of the companies. She says that Denis didnot appreciate the extent of his wealth or the value of the companies, and that he hadsaid that he was discussing his will with his lawyer, Kim Penketh (who is, in fact, aconveyancing practitioner). Cindy says that during this meeting Denis was unsureabout how to structure his affairs but that he was certain that Cindy should have all theshares, with Lynette gaining some income from CJL. She says they discussed givingLynette a proportion of Denis' shares to allow for her to receive dividends during herlifetime.[30] Cindy notes also a further discussion, between her, Denis, and Lynette, whileDenis was in hospital immediately prior to his death. She says: I asked Dad about his wishes for the company. His response was, "Cindyis going to have all the shares in the company". Lyn said, "but I deserve them".Dad responded along the lines of, "Calm down, you will have a lifetime rightover some of the shares" and then he said to me something along the lines of,"I know you think Lyn has enough money from the rental properties. But shewill need some more". Lyn responded that she wanted more than that and Iasked her what else she wanted. He response was along the lines of, "I wantmy last mortgage paid off by the amount of around $200,000.00 and I want anew Lexus and some income". I responded that apart from more income, sheessentially wanted $300,000.00 and she agreed that was what she wanted. Shealso asked about the life insurance on Dad's life of $300,000.00 .I indicated to Lyn that I could not agree on the money terms because Alan andBryce also own the company. I also pointed out that CJL had put a lot ofmoney into their house at Cushendall Rise. Lyn then responded along the linesthat Handy 4 Limited is something which she and my Dad had grown jointlyand she wanted that for herself, to which I responded that, "I don't want anyof it. I just want the family company and what the company has put intoCushendall Rise". My Dad responded, "once Lyn dies my half share inCushendall Rise goes to you".I stayed with my Dad and Lyn left the room. After this meeting, the widerfamily met, including my partner, Tim Scott, and Lyn who commented toeveryone present that, "I'm not going to have any shares in the company".One of her daughters said, "that's good Mum, you've never had anything todo with the company, it should be Cindy's".(emphasis in original)[31] Cindy says Denis intended that she inherit all the shares in the companies, andhe intended to change his will. She says that Denis' desire to provide her with all ofhis shares was jointly because she was his daughter, and as a result of all the work andservices she has provided CJL while she has worked there. Cindy believes she hasadded considerable value to the company over the last 20 years, and therefore to Denis'shareholding.[32] Under cross-examination, Cindy was asked about the common intention sheasserts she shared with Denis. Cindy's answer to Mr Pearson (counsel for Lynette) wasthat the first time there was a common intention that she should receive the shares "fornothing" was in 2019, although it seems to me that at this point she was merelyrestating the undisputed fact that the first time she had received shares at no cost wasin 2019. Cindy also accepted that Denis never said to her that "he was holding theshares for you". When asked about what would have occurred on Denis' retirement,Cindy said he would not have given her shares straight away, rather over a period oftime and there would have been more discussions. Cindy nevertheless maintained herposition is that she would get shares on retirement or death. She says that on manyoccasions Denis said she would get shares for nothing, including as early as 2000. Shealso confirmed that there was no discussion of her paying for shares in the future.Lynette's evidence[33] Lynette's evidence presents a different picture. She says that Denis would findCindy's claim 'shocking'. She says that Cindy and her family members have presenteda picture of Denis that is incorrect, and that their evidence is inconsistent with herexperiences and understanding of the situation. Lynette says that she and Denisexpected that if she lived longer than him, she would hold his shares during her life.However, given the relationship breakdown between her, Cindy, and the rest of thefamily, Lynette does not wish to retain the shares, but instead seeks confirmation ofDenis' will so that she may sell them at market value.[34] Lynette's view is that Denis has adequately provided for Cindy by leaving herhis half share in the Family Home. She says:When Denis was suffering from his final illness, he understood Cindy wasguaranteed to get half out house (as per his Will). He also had in mind that hehad already given her 10% of the total shares in the Chambers & Jackettbusinesses worth about $750,000 (current value, already transferred and theprice gifted in 2015 – 2019). He also knew she would be the manager of amulti-million dollar business and that she had a mortgage-free home worthover $1,000,000. He was mindful that she inherited that home from her mother(which she acquired as relationship property from her marriage with Denis).The current values of the home Cindy got from her mother, the shares Denisgifted to her, and Denis' half share in our Cushendall Rise home come to$2,670,000 on Cindy's calculations. At the time of his death, Denis believedhe would leave Cindy as the recipient of gifts from her parents of that value.In addition, Denis expected Cindy would have a strong income as the ChiefExecutive of the Chambers & Jackett business and the opportunity to growher own wealth having substantial assets, debt-free, at a relatively young age.[35] Lynette takes issue with Cindy's claim as it would make Cindy the majorbeneficiary of the estate. She thinks this would be improper. She says that Cindy wasnot underpaid or exploited by Denis, and that the allegation that Denis failed to giveher what he had promised is untrue.[36] Lynette describes herself and Denis as intelligent and successful businesspeople who built up their assets during their years together. Lynette says that she andDenis had open and frank conversations about their estates, resolving to each leavehalf-shares in the Family Home to their respective children, and that the rest of theirestates would be left to each other. She says that Denis' will was changed in 2007reflecting that they had been married for ten years and that it was nothing to do withCindy's relationship at the time with a CJL employee, Mr Pahl. She views the transferof shares to Bryce and Cindy as a way to give them an important stake in thecompanies—and says that if Denis had told Cindy she would get 50 per cent of thecompany but gave her 10 per cent, the documents created at that time would show that.[37] Lynette says that Cindy and Mr Robertson pressured Denis to change his willwhile he was terminally ill, and that Denis decided not to make any changes. She saysthat Denis was comfortable with the terms of his will at the time of his death. She saysthat the idea that the shares were only to be held by blood relatives is whollyinconsistent with conversations that she had with Denis. She says that the family havetreated her badly since Denis died, essentially cutting her off, not keeping her informedas a minority shareholder as to financial and operational matters, and failing to meetfinancial obligations to Denis' estate.[38] In her affidavit Lynette seeks (although I note such relief is not pleaded) either:(a) the rejection of Cindy's claim, leaving Lynette to bring furtherproceedings to deal with the fact that she is a minority shareholder whohas been shut out of the companies; or(b) orders that:(i) the value of Cindy's half share in the Family Home iscalculated, and the shares in the companies are independentlyvalued;(ii) Cindy receives shares in CJL equal to the value of the interestin the Family Home, and she takes the half share in the FamilyHome left to Cindy in the will; and(iii) she receives the market value of the balance of the remainingshares in cash.[39] Lynette acknowledges Cindy's commitment to CJL over the time she hasworked there. However, she says that Cindy's emphasis on her responsibility forbringing in health and safety requirements in the companies is overstated, although oncross-examination, Lynette accepted that health and safety matters were not of anyinterest to Denis. She also confirmed that he loathed going to meetings. She says thatCindy mischaracterises Denis' business experience and approach as being 'hands-off',when that was not the case. She says that Cindy was not underpaid, but rather familymembers were paid modestly by the two companies, to avoid increased tax liabilities,and because family members regularly received new cars and various other benefits atCJL's expense. Further, Lynette says that the value of the shares that Cindy has alreadyreceived is higher than the value of the work that she alleges she was underpaid or notpaid for.[40] Lynette records in response to Cindy's evidence about conversationsimmediately prior to Denis' death that:Cindy's description of a three-way conversation in the hospital when Deniswas dying makes no sense to me. She claims that Denis said she wouldreceive his Company shares and that I (in response to this) requested amortgage repayment, a new car and some income. Denis and I did not saythose things. She also claims that I asked about Denis's life insurance. Therewas no discussion about life insurance at that time either. I find it deeplyoffensive to suggest that I was interested in money at this time; my onlyconcern was for Denis.The contents of Denis's 2007 Will, and that he made no changes to his Will,despite the opportunity to do so in either the intervening years or in the monthsprior to his death, are, objective facts. They are entirely inconsistent with whatCindy claims Denis and I said.[41] Lynette also draws attention to the fact that CJL's constitution expresslyprovides for the transfer of shares to relatives and non-relatives, including spouses.She says that this is evidence that goes against the claim that Denis' view was thatshares should only be held by blood relatives. She does not accept that Denis ever heldthe view that only blood relatives should hold shares in the two companies.[42] Lynette filed a second affidavit in which she confirmed that her opposition toCindy's claim under the Family Protection Act does not rely on any suggestion thatLynette has a moral claim for greater provision from Denis' estate. Lynette explainedthat she has accumulated assets with a net value of several million dollars.[43] When cross-examined, Lynette accepted that she was not involved in the dayto day running of the companies, rather she was busy running her own business. Sheaccepted that Denis never discussed retiring, only slowing down, giving an exampleof a plan to travel together in Europe. Lynette also confirmed that she received certainassets through survivorship, on Denis death.[44] When asked about her evidence that Cindy and Mr Robertson pressured Denisto change his will, Lynette acknowledged that she had discussed with Denis whether"he wanted to do anything [to change] his will now that he'd been diagnosed and hewasn't keen at all to do anything because he didn't want to even believe he was goingto pass away but I said it was really important that we went along and just had adiscussion".[45] Also in the course of cross-examination, Lynette agreed to provide a redactedversion of her current will. This confirmed that (assuming Lynette receives the sharesunder challenge in this proceeding) Lynette has left one third of them to Cindy's son.Cindy's reply evidence[46] Cindy filed further evidence in reply to Lynette's evidence. She confirms thather relationship with Lynette broke down shortly after Denis' death, and that shedisagrees with Lynette's view of Denis' intentions for his estate. She says that Deniswished her to receive his shares regardless of whether or not she was underpaid or notpaid for the work that she did for CJL. She says that Denis kept his business out of hislife with Lynette. She disputes what Lynette says is the value of the shares she receivedin 2015 and 2019, and what Lynette says she has received from the estate of herparents.[47] Cindy denies that she pressured Denis to change his will. She says thatdiscussions were had with Denis as it appeared that he did not understand the extentof his wealth, and that at the time of his death he had not had legal advice since 2007.She says that Denis' denial of the state of his illness and the near prospect of his deathinhibited him from seeking such advice or acting to further understand his wealth orwill. She reiterates her view that Denis was not involved in the administration ormanagement of the companies, and would not have been capable of running them onhis own.Alan Chambers' evidence[48] Alan Chambers is Denis' brother, married to June Chambers. He isBryce Chambers' father, and uncle to Cindy. Alan says that when he and Denisreceived their shares in CJL they did not pay for them. He says that Denis frequentlytold Cindy that she was going to acquire his shares in the two companies. He says thathe and Denis intended that their shares would be received respectively by theirchildren, Bryce and Cindy, and that there was never any intention, discussion orsuggestion that their wives would receive any shares in the business. Alan says thattheir view was that ownership of shares in the companies should be limited to bloodrelatives of the Chambers and/or Jackett families, and that after Denis was diagnosedwith cancer, he reiterated his intention to give his shares to Cindy. Alan says it is hisunderstanding of his shares that if he "popped off", his wife June would be lookedafter, although she would not own the shares or have an interest in the business. Healso says that he understood that the company would give Lynette an income.[49] Alan discusses his role in running the two companies, illustrating that it waslimited, given his preference for being on site, and operating heavy machinery. Hesays that being in the field was a preference also shared by Denis. He says that Cindywas much more involved in the management of the two companies, doing the requisitepaperwork, organising meetings, recording keeping and accounting.[50] Alan notes also the discussions had with Denis while he was in hospitalimmediately prior to his death. Alan says his understanding at that time was that Denis'shares were going to Cindy, and that the companies would provide Lynette with anincome. He says he and Denis were thinking along the lines that $40,000 to $50,000 ayear was appropriate. Alan says he discussed giving Lynette an income with Lynetteherself and she seemed relieved.[51] Alan says that he feels Denis let Cindy down by not transferring the shares toher during his lifetime. He doesn't think Denis realised that when he changed his willin 2007, the effect would be that Lynette would receive his shares.June Chambers' evidence[52] June Chambers is married to Alan Chambers, and Bryce Chambers' mother.She supports Cindy's evidence, and says that it was indeed the view of Alan and Denisthat only blood members of their family would ever own shares in the company, andthat that was a view that was expressed by them throughout the 48 years she has beenmarried to Alan, and a view she did not think was unfair. She says that in all the timeshe had known Denis, he never indicated that he wanted Lynette to have his shares atthe time of his death. She also confirmed the existence of the dual life insurancescheme between Denis and Alan to enable them to buy back each other's shares in theevent of their deaths. June refers to Cindy's relationship with Mr Pahl, and Denis andLynette's disapproval of that relationship. She says that this may have been a reasonfor Denis refusing to leave the shares to Cindy in his will made in 2007, which was aview also expressed by Alan in his evidence. She says that she has always believedthat Cindy would receive Denis' shares on his death or retirement. June confirms thatCindy had a great relationship with Denis.Bryce Chambers' evidence[53] Bryce Chambers is a current director of both of the two companies, and the sonof Alan and June Chambers. Cindy is Bryce's cousin. He supports Cindy's claim.Bryce began working for CJL when he left school at the age of 16. He then returnedto CJL following a period in Europe between 2002 and 2007. Upon his return, he sayshe worked operating machinery, but he was paid less than the other machine operators,and far less than he would have received overseas. He says that when he and Cindycomplained to their fathers about their pay, Denis and Alan would both say that theywould receive due compensation in time, when they received the company shares onthe death of Denis and Alan respectively. He says that throughout his time working atCJL both he and Cindy have been repeatedly promised the shares of their respectivefathers upon their deaths. He says there was never any intention to involve either Juneor Lynette in the running of the business.[54] Bryce says that it was clear that Denis was intending to 'pass the baton' to himand Cindy. He notes that Cindy was the person who led work on health and safetycompliance, often having to remind Denis and Alan to be responsible and followguidelines. He says that "it is laughable to suggest that Denis would ask anyone in[CJL] to obtain licenses for health and safety obligations as Lyn has claimed in heraffidavit". His view is that neither Denis or Alan cared for following health and safetyrequirements, preferring instead to rely on their decades of experience in the field.[55] Bryce is certain that Denis intended to pass his shares in the companies toCindy, and that he had said as much. He says also that Denis did not discuss businessmatters with Lynette, and that he has no reason to think that Lynette was involved inany decision making regarding CJL.[56] Bryce also discusses the work CJL did on the construction of the Family Home,by way of machinery and 'man hours'. He says they did the foundations, drainage,garden landscaping, and water-blasting, and that Denis and Lynette used CJL fuel torun their vehicles, heat the Family Home, and power their boat. Bryce concludes bystating:In my view, it is totally reasonable that Cindy expected Denis to leave his C&Jshares to Cindy in his will. I have the same view that my father Alan will leavehis C&J shares to me in his will and I know that from the time Denis died, myDad has reviewed his affairs to make sure that he has structured his will andhis personal affairs to ensure that this intention is properly carried out.I do not know why Denis did not have a will which left his shares to Cindy,but I know absolutely that that is what his intention was. That is what Cindyand I have been working for since we both starting at C&J, 20 years ago inCindy's case and over 12 years ago in my case. From comments that Denismade during his life, I have no doubt that this is what Denis intended.Ross Jackett's evidence[57] Ross Jackett is the son of Eric Jackett, Denis' half-brother, and part namesakeof CJL and CJEL. He says that he is upset that Denis did not leave Cindy his shares inhis will and says that this is contrary to Denis' intention. Attached to his affidavit is astatement which he says he wrote because he felt upset and because of discussions hehad on 1 August 2020 with Denis and Lynette. The statement records his closerelationship with Denis and states:Denis mentioned that his intention was that [CJL] would go to CindyChambers as his only child. I questioned him on how he would provide forLynette. He said they had another company that held rental properties etc, thatLynette would be majority shareholder of, and this was done to provideincome for Lynette and her side of the family. He stated that this company"Handy Four" had substantial assets that would support her once he was nolonger here. He said to me that I should structure our companies in a similarway .Denis referenced the way his father Ted Chambers had left his will, his secondwife was left a house to use until she died or remarried, the company sharesin [CJL] were passed onto his blood children Denis and Alan Chambers .[58] Mr Jackett says that Denis leaving the shares to Cindy was a matter ofpreserving the family legacy.Mark Pahl's evidence[59] Mark Pahl provided an affidavit. He was employed by CJL in the 1980s and1990s as a truck driver, before being imprisoned for drug offending, and returning towork for CJL in 2002 as a Contracts Manager. He worked for CJL until 2017, at whichtime he was recalled to prison for breach of his parole conditions.[60] Mr Pahl says that Denis was not an office person but was rather always out inthe field. Mr Pahl worked in the office with Cindy and others. He says:Initially, Cindy became an expert on the ditch witch and other machinery,including digger work and driving rollers. From the time I arrived at C&J inaround 2002, Cindy increasingly began supervising drainage contracts,including supervising staff machine operators. From the time I started work in2002, it was clear that Denis was bringing Cindy along slowly and showingher the way that he liked to manage the subdivision side of the business.[61] Mr Pahl says that Denis thought of Cindy as "the boy that I never had that isgoing to take over the business". He says that he understood that Cindy and Brycewould take over the business from their fathers, Denis and Alan. He says that neitherLynette nor June Chambers were ever involved in running the companies.[62] Mr Pahl notes that he and Cindy championed health and safety compliancewithin the two companies, and that Cindy worked hard to make changes in the businessand to bring Denis along with her, introducing a raft of health and safety polices. Hethen discusses that he and Cindy began a relationship between late 2005 andearly 2006, notwithstanding their significant age differential. He says that this was apoint of significant anguish and conflict between Cindy and Denis, and himself.Mr Pahl says that Denis must have thought that he was unsuitable as a partner for hisonly daughter given the age differential and his criminal history.[63] Mr Pahl states:[Denis] never asked me to stop seeing Cindy or mentioned anything like that.He was however concerned about a lot of things. What he talked about cameout in a flood. During our conversations at this time in 2006, he said he waschanging his Will. He thought I was after his money but I do not know whyhe thought that. He was not thinking as straight as he should have been in myview. At the time I believe he had changed his Will or was about to change hisWill.It took a while after Cindy and I started living together before I was able toget back to a reasonable relationship with Denis. Once we had talked about itover a few weeks, we did start to communicate much better. We had alwayscommunicated really well for work, but over those first 3 weeks after he learntabout my relationship with Cindy, he had this outpouring of feelings anduncertainty. At the end of this period however, I felt like I had helped him dealwith it.I had been surprised how much my relationship with Cindy had affected him.I was surprised that he talked about getting advice from a counsellor andchanging his Will. This is why I knew he was so distraught. He loves Cindyto death, so to change his Will showed how much my relationship with Cindyknocked him for a six. I felt really bad.[64] Mr Pahl notes that his relationship with Cindy ended on or around 2013, butthat they remain good friends. In her evidence, Cindy also speculates that it was herrelationship with Mr Pahl that drove Denis to change his will. This is denied byLynette in her evidence, who says instead that if Denis had intended to punish Cindyfor that relationship, he would have cut her out of the will completely.Timothy Scott's evidence[65] Timothy Scott provided an affidavit. Mr Scott was in a relationship with Cindyfor approximately one year, which ended in 2021. They were therefore in a relationshipat the time of Denis' death. Mr Scott was also at that time, and until 13 May 2021, afull time employee at CJL.[66] Mr Scott discusses being in the hospital immediately prior to Denis' death,stating:After maybe 30 minutes, Lynette walked into the waiting room and satopposite me to my right beside a courtyard window where Roachelle[Lynette's daughter] was sitting. As she walked in she started talking sayingsomething along the lines of, "well, we have had a talk about things and Cindywill have the company shares". Monique [Lynette's daughter] who was sittingopposite me to the left with her husband, Aaron, got up and said, "look Mum,that's good, you don't need that stress anyway, that's Cindy's thing anyhow,she can have that". At that point Roachelle then said, "look, let's not worryabout that right now anyhow, we can discuss that later".Subsequently, Alan Chambers went in to talk with Denis and other membersone or two at a time. At some point I recall some discussions about whetherDenis and Lyn should get any amendments of the Will done in the hospital asit was something that could have been done. It appeared to me that thissuggestion was dismissed.I understand Lynette is now denying that conversation occurred, about theChambers and Jackett shares going to Cindy.(Emphasis in original)Gilbert Robertson's evidence[67] Gilbert Robertson, the companies' accountant, also provided evidence. He hasbeen the companies' accountant since 2015. He provides evidence as to the financialmanagement of the companies, and the transfer of a small number of shares to Bryceand Cindy in each of 2015 and 2019. Mr Robertson's recollection of the meeting on3 September 2020 between him, Denis and Cindy, was that:It became clear to me that Denis did not understand the full extent of what heowned or the value of what he owned. I recorded on a whiteboard the wealththat Denis understood he and Lynette owned. It included their house, theirboat, properties, shares, cash and the shareholder's current account Denis was struggling with how to make it fair for all the family and how itshould work on his death, but there was no doubt that Cindy was supposed toend up with all his shares in C&J. We specifically discussed the transfer ofDenis' full remaining 40% shareholding in C&L to Cindy. This included thetransfer of the C & J Equipment shares.Denis advised that Lynette wanted to retain an interest in the company. Hesaid that she did not want to sit in the boardroom, but she wanted a return onan interest in the company, such as some income.What was discussed was that all the shares should go to Cindy, but forLynette's life, she should have an interest in some shares. I note I haverecorded 50% to Cindy and 50% to Lynette. I indicated to Denis that with aninterest of 50% of the shares, Lynette would receive an income of$100,000.00, to which Denis said that amount was "absolutely ridiculous".Where he rejected Lynette having an interest in 50% of his shares, I thenadvised him that if Lynette had a life interest in 25% of Denis' shares or 10%of the company shares, she would receive annual income of approximately$50,000. Denis was happier with that arrangement.[68] Mr Robertson recorded these matters in a file note, prepared during the3 September 2020 meeting. The file note supports his evidence. The file note indicatesthat Denis' intention was to carry through that proposal into his will, and that he wasdiscussing this with a Kim Penketh (who Mr Robertson assumed was Denis' lawyer).Mr Robertson says he was unfamiliar with how a life interest attaches to shares soDenis suggested he meet with Ms Penketh to progress this. He says that he alsounderstood that Denis would then talk with her to finalise his wishes along the linesof what was discussed on 3 September 2020. When Mr Robertson met withMs Penketh on 15 September, he understood she was Denis' lawyer. From herexplanation, he also understood that Denis' estate would own a specific number ofshares like a trust and Lynette would receive income from those shares and then onher death, Cindy would receive the shares outright. Mr Robertson says he suggestedto Ms Penketh that she should meet with Denis by himself, as he understood Deniswas feeling some pressure to look after Lynette.[69] Mr Robertson agrees with Cindy that she has not received full remunerationfor the work she has done for CJL over the last 20 years. He has obtained data onCindy's renumeration and earnings over the period between 1 April 2002 and31 March 2021. He has produced information comparing what Cindy was paid overthat time period, compared to what others doing the same or similar work were paid.His calculation of what he says Cindy should have been paid also takes into accountCindy's increasing responsibilities within the companies. Mr Robertson concludes:55. In total, I summarise the amounts for which Cindy was underpaid ornot paid at all, as follows:(a) Gross payments for the period from 2022 until March 2021was $838,476.38(b) The total amount Cindy should have been paid if she was paida fair wage was $1,230,913.01 and therefore for the hours shewas paid a lesser rate than she should have or was under paidwas approximately $392,436.63.(c) For the hours Cindy worked and was never paid, these amountto 2,580 and she should have received for those unpaid hoursapproximately $99,287.20.(d) The total amount which Cindy has been underpaid by, or notpaid at all is $491,723.83.[70] Mr Robertson also comments on Lynette's evidence. He says that herimpression of the transfer of shares to Bryce and Cindy in 2015 and 2019 is incorrect.He says that the intention of the share transfer in 2015 was to begin a succession planfor the business, bringing in Bryce and Cindy as managers and owners of the businessover a period of time. This was completely separate from the 3 September 2020discussion as to what was to occur on Denis' death. He says that the 2019 transfer wasdesigned to address their current accounts, which were blowing out significantlywhere the amount of dividends they were received was not reducing their currentaccounts. He says also that Lynette was not involved in any of these discussions norin any CJL meetings that he was present for. He says that there was no connectionbetween the transfer of the shares and Cindy's claim of underpayment.[71] Mr Robertson describes Denis as "old school"—he was very blasé about healthand safety and did not enjoy paperwork. He says Cindy has worked very hard to bringthe company up to compliance with health and safety and other regulatory practices.He says Denis and Alan preferred to be on machines rather than making strategicdecisions and would procrastinate about making such decisions.[72] Mr Robertson also says that he was unaware that Cindy regularly had new carspurchased for her, or other benefits at CJL's expense, as Lynette has said. He also saysthere was never any discussion of paying Cindy and Bryce less than market rates toavoid paying too much tax.[73] Mr Robertson denies the suggestion that he and Cindy pressured Denis tochange his will, and says that in all his conversations with Denis, Denis nevermentioned wanting anyone other than Bryce and Cindy to take over the companies.He says he does not think Denis fully appreciated the extent of his wealth.Mr Robertson was surprised to learn Lynette and Denis owned shares worth over$2,000,000, noting the income from those shares has not been disclosed to him despitehim completing Denis' tax returns for the last five years.[74] Mr Robertson confirmed that profits were always attributed to Denis, resultingin a significant current account, and he received significant dividends, shareholdersalaries and drawings, which for the period 2003 to 2017 amounted to $175,000 perannum.Cindy's claims[75] As noted earlier, Cindy has pleaded three causes of action. The first asserts acommon intention constructive trust. The second is a claim under the TPA and the thirdis a claim under the Family Protection Act.[76] In my view it is appropriate that I first address the claim under the TPA. Intaking this approach, I acknowledge that Cindy's claim was first and foremostadvanced on the basis of a common intention constructive trust. Mr Pearson, counselfor Lynette, suggested that there is some difficulty in pleading a constructive trustclaim in reliance on the same promise pleaded in support of a testamentary promiseclaim. He argues that the TPA provides a remedy for such circumstances and tocontemplate unconscionability beyond the scope of the TPA simply becomes a deviceto avoid the TPA. He also says further that the authorities don't reflect circumstanceslike the present as establishing a constructive trust, rather the claim should properlybe seen as a TPA case, if there is evidence of a promise.[77] While I do not accept Mr Pearson's submission in its entirety, I do considerthat given the factual circumstances, it is appropriate to firstly consider whether theclaim is made out under the TPA. Parliament has provided a statutory cause of action,and it seems logical to assess this before considering whether equity requires a furtherresponse from the Court.1[78] Before I consider each of Cindy's claims, I make a general comment on myassessment of the evidence.1 See also the discussion in Brookers Family Law – Family Property (looseleaf ed, ThomsonReuters) at [TA3.07(8)(d)].[79] As previously mentioned, the parties required only Cindy and Lynette forcross-examination at the hearing. I found both Cindy and Lynette to be crediblewitnesses in the face of an upsetting family dispute. I have no doubt that Lynette wasa loving wife to, and loved wife of, Denis. Nor do I doubt the close and lovingrelationship between Cindy and Denis. Nonetheless, to determine the claims made, Imust make evidential findings on the balance of probabilities, based on the evidencethat has been put before me.Claim under Law Reform (Testamentary Promises) Act[80] Section 3(1) of the TPA provides:Where in the administration of the estate of any deceased person a claim ismade against the estate founded upon the rendering of services to or theperformance of work for the deceased in his lifetime, and the claimant provesan express or implied promise by the deceased to reward him for the servicesor work by making some testamentary provision for the claimant, whether ornot the provision was to be of a specified amount or was to relate to specifiedreal or personal property, then, subject to the provisions of this Act, the claimshall, to the extent to which the deceased has failed to make that testamentaryprovision or otherwise remunerate the claimant (whether or not a claim forsuch remuneration could have been enforced in the lifetime of the deceased),be enforceable against the personal representatives of the deceased in the samemanner and to the same extent as if the promise of the deceased were a promisefor payment by the deceased in his lifetime of such amount as may bereasonable, having regard to all the circumstances of the case, including inparticular the circumstances in which the promise was made and the serviceswere rendered or the work was performed, the value of the services or work,the value of the testamentary provision promised, the amount of the estate,and the nature and amounts of the claims of other persons in respect of theestate, whether as creditors, beneficiaries, wife, husband, civil unionpartner, children, next-of-kin, or otherwise.[81] Section 2 of the TPA defines "promise" to include any statement orrepresentation of fact or intention.Cindy's submissions[82] Mr Ironside, counsel for Cindy, submits that she has a strong claim under theTPA. He says:(a) Cindy rendered services or performed work for Denis in his lifetime;(b) Denis made express or implied promises to reward Cindy for her workor services in his will by transferring her the shares in the companies;(c) there is a nexus between the work or services and the promise; and(d) Denis failed to provide for Cindy as such in his will, pursuant to thepromise.[83] I note that there was no dispute between counsel as to those requirements beingthe essential elements of a successful claim under the TPA.[84] Mr Ironside submits that 'services' is a term that has been interpreted widelyby the Courts, including that "the mere fact that what was rendered to the deceasedwas intangible and of a value incapable of precise monetary assessment, did notprevent it from being a service".2 He says that the work that Cindy performed iscapable of being included in the definition under the TPA. Mr Ironside accepts that thequantification of Cindy's unpaid remuneration is somewhat crude—but says thatCindy assumed responsibility for significant aspects of the business, includingobtaining the necessary compliance qualifications critical to the ongoing ability forCJL to complete contracting work. He says these factors constitute illustration of aconscientious attention to the ongoing viability of the business over a long period oftime. He says these services were performed on the explicit understanding that Cindywas to take over from Denis in due course. He says that seen in this context, Cindy'swork and services for CJL amount to an extensive commitment over a period of20 years to becoming Denis' successor in the business. Cindy joined CJL because it isthe family business and with her father's encouragement. That Cindy would succeedto Denis' ownership interest in the companies was undoubtedly a source of immensepride for Denis and important to him. Cindy is his only child so no one else was ableto fulfil the role of filial successor.[85] Mr Ironside accepts that Cindy has benefitted from her employment withCJL—including financial stability and opportunities to advance her career. However,2 Tucker v Guardian Trust and Executors Company of New Zealand Ltd [1961] NZLR 773 (SC) at776; citing Hawkins v Public Trustee [1960] NZLR 305.he says that the commitment shown, and sacrifices endured by Cindy cannot beseparated from the assurances given by Denis that Cindy would be his successor, andthat any benefits to Cindy are negated if those assurances are not now honoured. Hesays that on a reading of the evidence there is little doubt that Denis' words andconduct over an extended period amounted to a promise in respect of the shares.[86] Mr Ironside submits that the overriding consideration is what is reasonable inthe circumstances. He says no injustice is done to Lynette by Cindy receiving theshares, given Lynette's own business interests and her lack of hands-on involvementwith the companies. He submits that that when Denis became ill, he found it toochallenging to put his affairs in order, and the Court's assistance is therefore requiredto perfect the promise Denis made to Cindy. Mr Ironside submits that the appropriaterelief is to transfer the shares to Cindy.3Lynette's submissions[87] Mr Pearson submits that the first three elements of Cindy's claim for atestamentary promise are not made out on the evidence. First, Cindy did not performservices for Denis—but rather was an employee of the family business. He says thaton Cindy's own calculations, she has already received shares to a greater value(approximately $500,000) than the amount she says she was underpaid (approximately$475,000). He says this outcome is entirely consistent with Denis having the view thathe had made adequate provision for Cindy.[88] In relation to the requirement for an express or implied promise by thedeceased to reward Cindy, Mr Pearson relies on Silbery v Silbery to submit that thetestamentary arrangements in this case are inconsistent with the alleged promise. Hesays this case is illustrative of the difficulty in establishing a testamentary promise.4Mr Pearson contends there was no promise that Cindy would receive the shareswithout payment. As to the requirement for a nexus between the services and apromise, he says that there is no basis for contending that Cindy provided services,beyond normal family roles, to her father. Mr Pearson says that Cindy's argument that3 Re Welch [1990] 3 NZLR 1; (1990) 7 FRNZ 536 (PC).4 Silbery v Silbery HC Wellington CIV 2005-485-2499, 22 August 2007.she enhanced the company shares is circular. That is, she claims to have enhanced theshares, but also claims to have a beneficial interest in those shares. He appears tosuggest on this basis that there is no nexus between the services and any promise.[89] As to the requirement that the deceased failed to make the promisedtestamentary provision or appropriately remunerate Cindy, Mr Pearson says this failson Cindy's own evidence. That is, she has been fully compensated for the value of theservices she claims to have provided and she seeks to take at least an additional$2 million in shares in preference to Lynette. He says this claim is therefore notreasonable.The Guardian Trust's submissions[90] Mr Gilchrist, counsel for the Guardian Trust, submits that the Court mustcarefully determine whether there was an express or implied promise in thecircumstances where some shares were earlier transferred and there was no provisionfor Cindy's claim in Denis' will. As to the nexus between the promise and the reward,Mr Gilchrist submits that motive for the services is irrelevant but what is required isthat the promisor indicates that the plaintiff will be the ultimate beneficiary of thepromise. The nexus must be objectively determined in circumstances where some ofthe shares were in fact formally transferred.[91] Mr Gilchrist says that there is some provision for Cindy in Denis' will and viathe earlier share transfers. If Denis failed to make provision, the most difficult andcontentious part of the claim is how that deficiency is to be remedied. Mr Gilchristsays the Court needs to assess the value of the services or work with the focus on thevalue of the services to the recipient. This can be conducted by considering thepromisor's own assessment of the value of services and here we know that thedeceased "grappled with looking after Lynette, and what he should leave her in termsof shares". Ultimately, Mr Gilchrist says the Court must assess what is fair andreasonable remuneration for what was promised. In circumstances where Cindy waspaid for the work or services and has already received 20 per cent of Denis' shares,Mr Pearson says there may not be justification for an award effectively in excess of$2 million.Analysis[92] The elements of a claim under the TPA are not contentious as a matter of law.I turn to consider each element against the facts.[93] First, I find on the evidence that Cindy provided work and services to Denisduring his lifetime. Mr Pearson did not pursue a point made initially that as Cindy wasan employee of CJL, she was not providing services to Denis. As noted by Mr Ironside,the concepts of 'work' and 'services' are to be given a broad and liberal construction,including both tangible and intangible services that are not easily valued in monetaryterms.5 I consider that the fact Cindy was paid by CJL is not fatal to her claim pursuantto the TPA.[94] I accept that the evidence given by Mr Robertson establishes that Cindy waseither underpaid or not paid at all for some part of the work she undertook for thecompanies. Mr Robertson records this at a value of $491,723.83. I am satisfied thatthis work was undertaken for Denis. It benefitted him as a shareholder in thecompanies in that the companies did not have to pay for that work. While this alsobenefitted Alan, Bryce and Cindy, I note that a significant amount of the services inissue in this proceeding were provided by Cindy prior to the point at which she (andBryce) first acquired shares in 2015. At that time, she had already worked for CJL forover a decade, while being underpaid. It has been suggested by counsel for theGuardian Trust and Lynette that the transfer of shares to Cindy in both 2015 and 2019(in part at a favourable price and in part as a gift) compensates Cindy for this work. Ido not agree. In my view, the arrangements relating to the transfer of shares areproperly understood as separate matters. Notably, the 2015 transfer of shares resultedin Cindy possessing a significantly greater residual debt to CJL.[95] I also consider that Cindy's work and services went beyond what mightreasonably be expected of an ordinary employee, and extended beyond what mightreasonably be expected within the family relationship.6 This is exemplified by thework she undertook at the time her son was born. Her commitment at this time is5 See Tucker v Guardian Trust and Executors Company of New Zealand Ltd, above n 2, at 776;citing Hawkins v Public Trustee, above n 2.6 See Re Welch, above n 3.supported by the uncontested evidence from Alan Chambers. A further example is hercommitment to acquiring appropriate qualifications that assisted her to ensure thecompanies complied with regulatory requirements. The evidence suggests that theserequirements were less likely to have been complied with had she not completed thatwork. I find that over the 20 years or so Cindy has been working for the companies,she has preserved and enhanced the ongoing success of the companies and thereforeDenis' interest in them. I accept Mr Ironside's submission that Cindy gaveconscientious attention to the ongoing viability of the business over a significantperiod of time. Put simply, Cindy did more than merely perform her employmentduties.[96] A less concrete but nonetheless important aspect of Cindy's commitment to thecompanies is the fact that she is Denis' daughter. Her involvement in the business wasimportant to Denis because of his desire that this closely held family businesscontinued to be held and operated by family members. In this regard I accept Cindy'sevidence that Denis talked about Cindy as being "the boy I never had that is going totake over the business". This is supported by Mr Jackett's evidence that Denis told himCindy would take over Denis' shares and Bryce would eventually take over Alan'sshares. I note Mr Jackett's evidence that Lynette was also present during thatconversation and that she said "and even Ted [Cindy's son]" would one day beinvolved. I conclude that Denis placed a significant value on family members owningand operating the companies, as they have always done.[97] I do not consider that the circumstances of this case are similar to that ofChapman v HP, in which a TPA claim was unsuccessful on the basis that "not beingpaid for work done in the family businesses was part of the family way of life".7 Thework concerned in that case involved both part-time and full-time work in severalfamily businesses while the claimants were young, and over a significantly shorterperiod of time than in Cindy's case. In the present case, Cindy has demonstrated asustained and dedicated commitment over a period of two decades, in a manner thathas upheld the value of the companies themselves and fulfilled Denis' aspirations forthe business.7 Chapman v HP HC Wellington CIV-2007-485-1372, 2 July 2009 at [284].[98] The second element Cindy must prove is that Denis had promised to rewardher in his will for the work and services. Of importance in establishing this promise isthe meeting between Denis, Cindy and Mr Robertson, the company accountant, on3 September 2020. This occurred only two weeks prior to Denis' death. Cindy saysthat at this meeting Denis was "indecisive about how he should arrange his instructionsin regards [to] the shares in the company" although he was "certain that he wanted meto have the shares but he wanted Lyn[ette] to have some income from the company".Cindy says that the meeting concluded with agreement that Mr Robertson woulddiscuss how to achieve this with Kim Penketh (the conveyancing practitioner withwhom Denis was dealing in relation to his will).[99] The tenor of this discussion is supported by the evidence from Mr Robertson,which I outlined earlier. I consider that I can place considerable weight on the evidencegiven by Mr Robertson about this meeting and the steps he took shortly afterwards tospeak with Ms Penketh. Mr Robertson is an independent witness. He has providedcontemporaneous documentation to support his evidence. I record that the parties didnot require him to be available for cross-examination at the hearing.[100] Mr Robertson's evidence is that, after speaking with Ms Penketh, Denis was"to finalise his wishes along the lines of what we had discussed, which was that Cindywas to have some shares immediately and the rest of the shares eventually, but in themeantime until Lynette's death, Lynette would enjoy some income from shares theestate would retain".[101] However, Denis did not have this further conversation. Ms Penketh did notreceive any response from Denis when she sought further information so a will couldbe prepared. Lynette's evidence is that this shows Denis did not want to change hiswill. Her evidence is that Denis talked to her about changing his will and that "heconsidered whether he should make any changes and decided he would not make anychanges".[102] Also important is evidence of other discussions Denis had in these last days ofhis life. Cindy and Lynette provide very different accounts of a conversation theyshared with Denis in the last few hours of his life. In essence, Cindy says Denis saidshe was to get all the shares and Lynette was to have a lifetime interest over some ofthem. Lynette says that this makes no sense to her. Her position is that Denis knewCindy already had a ten per cent interest in the companies and "expected she mightinherit more after my death". Lynette says she and Denis remained comfortable withtheir wills from 2007 to Denis' death.[103] Lynette was not cross-examined about this conversation. Some questions wereput to Cindy about it, but the answers elicited did not have the effect of altering Cindy'sevidence of the conversation. Cindy and Lynette each loved Denis dearly and knew hehad very little time left. I expect that this day would have been highly emotional foreach of them.[104] I find that Cindy's evidence of this conversation is supported by otherevidence.[105] First, there is evidence about what was said immediately following thatconversation. Cindy's evidence is that, in front of the wider family waiting in anotherroom, Lynette said to everyone present "I'm not going to have any shares in thecompany" and one of Lynette's daughters responded, "that's good Mum, you've neverhad anything to do with the company, it should be Cindy's". The nature of thisconversation is confirmed in the evidence of Cindy's then partner, Mr Scott. Lynette'sevidence does not respond to this.[106] Second, there is the evidence from Alan Chambers, Denis' brother and fellowshareholder in the companies. Alan says that after Denis was diagnosed with cancer,they had a discussion in which Denis said he was giving all his shares to Cindy. Alanparticularly recalls the conversation because he joked with Denis that Cindy wouldthen have more shares than he did. Alan also says that when he was with Denis at thehospital on the day Denis died, he discussed matters with Denis. He recalls that thisincluded Denis saying that if he wanted to get a lawyer in now, Denis could signsomething, but that this never happened. Alan presumed he was referring to givingCindy his shares. Alan and Denis also discussed the income Lynette should receive.Alan said they were both thinking that between $40,000–$50,000 would be anappropriate amount. Alan also gives evidence of a private discussion that followed,between him and Lynette. Alan's evidence is that Lynette raised the question ofinsurance money and was aware of the life insurance policies Denis and Alan held infavour of each other. Alan says he told Lynette that "we would carry on and give heran income, to which she said, 'that's so good'". Alan says he then said "that was easywasn't it? Why were you so concerned?" and that after that Lynette seemed happier.[107] It is the case that Denis had three months from the diagnosis of his medicalcondition to his death. He did have the opportunity to change his will or take othersteps in relation to his shares in the companies. He did not do so. It seems to me likelythat Denis was caught between his loyalty to both his daughter and his wife, and hisdesire to do right by them both. The evidence shows that Denis was not someone fondof paperwork. His ill health, poor prognosis, general disinclination for administration,and the difficulty of the subject matter means it is not perhaps surprising in thesecircumstances that he simply did not resolve these issues prior to his death. Such anoutcome is unfortunately common.[108] I am satisfied by the combination of Cindy's evidence and Mr Robertson'sevidence that at the 3 September 2020 meeting Denis expressly promised to leave hisshares in the companies to Cindy. I find that Denis intended for Cindy ultimately toown the shares in their entirety. I consider that this conclusion is supported by the otherevidence I have discussed above.[109] In addition, I accept the evidence from Cindy, Alan and Bryce that there was acourse of conduct over a number of years prior to the 3 September 2020 meeting bywhich Denis said to Cindy on numerous occasions that she would receive the sharesupon his death or retirement. Mr Jackett's evidence similarly supports that this wasDenis' plan. I am satisfied that this evidence supports a further conclusion that such apromise had been made at earlier times and in any event supports my conclusion aboutthe promise made at the 3 September 2020 meeting.[110] The third element is establishing the necessary nexus between the work andservices undertaken by Cindy and the promise made by Denis to give her the shares. Iconsider that such a nexus has been established. I consider that it is apparent from theevidence provided in this proceeding that the promise made by Denis to Cindy wasconnected to the work and services that she has undertaken. It is clear that although hefailed to accurately record this position in his will, Denis felt safe in the knowledgethat Cindy, given her commitment to the companies, would continue to uphold andoperate them following his death. While I accept that to some extent it is difficult toentirely separate Denis' intentions for succession and his desire to reward Cindy forunpaid work, ultimately, both of these aspects support the finding of a nexus betweenCindy's work and services, and Denis' promise. Absent the work and services providedby Cindy, Denis' wishes as to succession were unlikely to have been fulfilled.Accordingly, I am satisfied that there is a sufficient nexus between the work andservices, and the promise.[111] The final element is that Denis failed to fulfil his promise to Cindy in his will,which is self-evidently established.[112] Accordingly, I consider that Cindy's claim under the TPA is made out and so Imust consider what relief I should order.[113] An order made pursuant to s 3(1) may be subject to terms and conditions as theCourt thinks fit.8 That is a broad discretion, subject to the reservation that if theclaimant was fully rewarded during the deceased's lifetime, no award will be made.9The Court must have regard to all the circumstances, including the value of theservices or work from the deceased's perspective,10 the value of what was promised,11and what is reasonable in all the circumstances.12[114] I consider that fair and reasonable provision in the present case, in return forthe work and services that Cindy provided to Denis is that all of Denis' shares in thetwo companies should be vested in Cindy.13 However, there is ample evidence(including from Cindy), which I accept, that Denis wished Lynette to receive some8 Law Reform (Testamentary Promises) Act 1949, s 3(7)9 See Klein v Klein [2013] NZFC 8915.10 Powell v Public Trustee [2003] 1 NZLR 381 (CA).11 Powell v Public Trustee, above n 10.12 Samuels v Atkinson [2009] NZCA 556. I note also, however, that I do not consider this casefactually similar to the present case, and cite it only for the purpose of recording the requirementof reasonableness.13 Section 3(3) of the TPA gives the Court the power, where the promise relates to specific propertywhich forms part of the deceased's estate, to vest, direct, transfer or assign that property to aclaimant instead of awarding a sum of money.income from the companies, during her lifetime. Mr Ironside submits that this is froma legal perspective, "a distraction", arguing that by September 2020, it was establishedthat Cindy was to receive the shares.[115] However, I consider that this must also be addressed. I consider that theappropriate relief is that Cindy receive Denis' shares subject to Lynette receiving someincome from the shares during her lifetime. I consider that the appropriate level ofincome for Lynette is established by reference to a 10 per cent share of the annual netprofits earned by CJL.14 This reflects the discussions Denis had with Cindy andMr Robertson, and with his brother Alan, where reference was made to a 25 per centshare of Denis' 40 per cent shareholding. I return to the detail of how this outcomemight be achieved later in the judgment.[116] In case I am wrong in my conclusion that Cindy's claim under the TPA is madeout, I now turn to consider her cause of action based on a common intentionconstructive trust.Common intention constructive trust claim[117] In this cause of action Cindy pleads that:(a) she carried out significant duties and responsibilities as an employee ofthe companies from 2000 to 2020;(b) she did not receive fair and reasonable remuneration for those services,and those services improved the value of the companies' business andshares;(c) Denis encouraged Cindy to provide these services on the basis ofassurances leading to a common intention held by Denis and Cindy thatthe shares would pass to Cindy on Denis' retirement or death;14 As a practical matter, CJL is the company which is used to carry out the business.(d) the common intention was expressed by Denis to other persons onseveral occasions from 2010, including on 17 September 2020, the dayhe died;(e) at the date of Denis's death and on the basis of the common intention,Denis held the shares on trust for Cindy as his intended successor in theCJL business;(f) Cindy reasonably expected to receive the shares and it isunconscionable for Guardian Trust to assert ownership of the legal andbeneficial interest in the shares; and(g) Cindy seeks the transfer of the shares in the companies to her.[118] Lynette denies that such a constructive trust exists. As will become apparent inthe following discussion, there is not much difference between the parties as to therelevant law, but very different views on whether the facts support the existence ofsuch a constructive trust.Cindy's submissions[119] Mr Ironside submits that the remedy available through the imposition of acommon intention constructive trust is a flexible remedy that has application in apractical way.15 He relies on the statement of the Court of Appeal in Almond v Readthat:16The common factor in all of these scenarios would appear to be theunconscionability of the defendant in denying the plaintiff an equitableinterest in the relevant property because of a previous understanding, whethersubjectively agreed to by the parties or more commonly deemed by the law tohave been appropriate in the circumstances. It is the element of consent orintention (or lack of either of these, as the case may be) that triggers theinstitutional constructive trust which arises to reverse the defendant'sunconscionability.15 Commonwealth Reserves I, LC v Chodar [2001] 2 NZLR 374 (HC) at [37] and [39].16 Almond v Read [2019] NZCA 26 at [172]–[173].[120] Mr Ironside relies also on the decision of Glazebrook J in Chodar to emphasisethat a constructive trust is a means to an end, a mechanism to enforce personalaccountability with proprietary consequences.17 He argues that what exists in thepresent case is an institutional constructive trust, where Cindy is asking the Court torecognise in a declaratory manner that on Denis' death, his shares in the companieswere held on trust for her.[121] Mr Ironside submits that critical to this case is the acknowledgment by Denisand Alan, to Cindy and Bryce, that they would become the future owners of thebusiness. He says that it is clear on the evidence that the services and work performedby Cindy over a period of 20 years were on the explicit understanding that she wouldbe rewarded as a future owner of the business, and that no one other than bloodrelatives would take that role. He says that this is consistent with the fact that pastshareholders of the two companies had always been family members involved in thebusiness, rather than passive shareholders.[122] In the circumstances, Mr Ironside submits that it would be unconscionable forthe Court not to recognise that a constructive trust has arisen, and therefore that theshareholdings do not form part of Denis' residual estate, left to Lynette in his will. Hesays that Cindy and Bryce were treated differently from other employees on theunderstanding that they were to be the next generation of owners, and that their rolesand treatment are only explicable on that basis. He submits that notwithstanding Denis'will, the executor is prevented from passing the shareholdings to Lynette as thebeneficiary of his residual estate—as at the time of Denis' passing, the shares passedto Cindy. He submits that Cindy had an objectively reasonable expectation that theshares would pass to her.[123] Mr Ironside emphasises that it should not be surprising that succession wasdealt with in a largely informal way given the context of closely held familycompanies. There was trust between Denis, Alan, Bryce and Cindy. He says that thisis not a case of an incomplete gift, as in Harvey v Beveridge.18 The family business17 Chodar, above n 15, at [37].18 See Harvey v Beveridge [2014] NZCA 72, (2014) 3 NZTR 24-003; and Harvey v Beveridge [2013]NZHC 1718, [2013] NZAR 1364.context is crucially different, as seen from Bryce's evidence that his father and uncletold him that he could go to work in Australia, but if he did, he would not get sharesin the companies. Mr Ironside emphasises the course of conduct that establishes thecommon intention and reasonable expectation.Lynette's submissions[124] Mr Pearson emphasises that probate is a vital jurisdiction of this Court, wherestringent rules are applied to ensure that testamentary arrangements are secure againstreconstruction by self-interested parties after a testator's death. He notes that this thiscase, Cindy's claim seeks to overturn Denis' provision for Lynette, after their 28 yearsof marriage.[125] Mr Pearson accepts that the legal principles relevant to a constructive trustclaim are not disputed. He nonetheless submits there are significant difficulties withCindy's claim on the facts. First, he contends that there is a fundamental problem inthat Cindy had not considered that she might need to buy out Denis' shares if he wasto retire—suggesting that otherwise, Denis would have had to rely on Lynette'sresources for financial support. Mr Pearson contends that even on the day Denis died,there was no resolution as to on what terms she was to acquire the shares. Thus,Mr Pearson argues there was no meeting of minds that Denis was to give Cindy theshares without payment.[126] On these grounds, Mr Pearson contends that no common intention isestablished. He also notes that while Cindy's case relies on evidence that shares in thecompanies were always to be held in "bloodlines", the constitution of the companiesspecifically allows spouses to hold shares. Mr Pearson refers to much of Lynette'sevidence, on which she was not cross-examined, in support of her construction of theconversation which happened in the hospital immediately prior to Denis' death, as wellas other matters.[127] Mr Pearson submits that no contemporaneous documentation supports Cindy'sclaim that she worked for Denis at an undervalue in exchange for a promise to giveher his shares on his retirement or death. He says that anecdotal evidence cannotoverride solemn testamentary arrangements. He submits that the Court must besuspicious of the reconstruction of past events in a manner that is inconsistent with adeceased person's intent as expressed in their will. He says that Cindy is seeking tocircumvent Denis' will, which has been granted probate, and relies on assertions ofpromises of which there is no written record.[128] Mr Pearson also draws attention to the status of a constructive trustee, whocannot claim personally any increase in value of the property or any profits earned byit. He says that Denis' position in respect of the shares during his lifetime isinconsistent with an intention by him to hold the shares on trust for Cindy. He saysthat Cindy's position is that Denis did not hold the shares as a personal asset over theyears, rather holding them on trust for her—and that this inconsistent with the wayDenis acted throughout his lifetime.The Guardian Trust's submissions[129] Mr Gilchrist, while taking a neutral stance, submits that the best evidence as toDenis' intent is his own actions, and his intent as recorded in his two wills in 1997 and2007. He submits that the Court should be cautious in interfering with Denis' will,especially where Denis had the opportunity to amend it during the period where heknew he was suffering from a terminal disease. Mr Gilchrist notes the caution thatmust be applied in that the person who could have assisted most with this question,Denis, is not able to give evidence in the case.19[130] Mr Gilchrist says that the records of Mr Robertson show that the deceasedstruggled to decide how best to split his assets, but wished his shares to eventuallypass to Cindy, subject to a life interest for Lynette, to provide her with some income.However, he says that an available inference is that Denis did not change the 2007 willbecause he was happy with it. Mr Gilchrist then submits that it is therefore possible toinfer that Denis made a conscious and deliberate decision, not only in 2007 but alsojust before his death, not to leave his shares to Cindy. Denis had the opportunity totake advice, he took advice, and he nonetheless made no change to his 2007 will.19 See Ace v Guardian Trust and Executors Co Ltd [1948] NZLR 103, affirmed by Hammond J inBrown v Pourau [1995] 1 NZLR 352.[131] Mr Gilchrist notes that the previous transfers of shares from Denis to Cindyhave been fully documented and were undertaken in the context of professional advice.Mr Gilchrest says that there would have been no need for the transfer and/or gifting ofthe shares in 2015 and 2019 had the shares already been held on trust for Cindy. Hesubmits that Bryce's evidence does not establish that at this stage, Alan's shares are infact held on trust for him. He submits that in circumstances where the parties hadaccounting and legal advice and were aware of the need to document the transfers ofshares in 2015 and 2019, the Court should be cautious in inferring intent by Denis tohold his shares on trust for Cindy. He submits that an intent to gift is not the same asan intent to hold property on trust.20[132] Mr Gilchrist accepts that in the circumstances of this case, there could be aconstructive trust. Having initially queried the availability of a common intentionconstructive trust outside the scenario of a de facto relationship, Mr Gilchrist clarifiedthat he was not making the submission that there was any jurisdictional impedimentto such a claim in the present case. Mr Gilchrist submitted that the three essentialelements of a common intention constructive trust are a common intention, relianceand detriment, and unconscionability. Mr Gilchrist also relies on Harvey v Beveridgeto question whether the present case too, is not a situation of an unperfected gift.21[133] Mr Gilchrist's concern remains as to whether on a factual basis, the evidenceestablishes a common intention between Denis and Cindy. He characterises the issueas to whether Cindy's expectations were reasonable given the background facts andDenis' conduct. Mr Gilchrist highlights that there is disputed evidence as to whetherDenis' intentions were made explicit, and if they were, they were oral, and inconsistentwith the documentary actions that had been earlier taken.Analysis[134] I turn first to address what Cindy must establish, as a matter of law, to provethat a common intention constructive trust exists. There was not significant dispute20 See Harvey v Beveridge, above n 18.21 See Harvey v Beveridge, above n 18.between the parties as to the relevant law. It is nonetheless convenient to set out herethe position as I understand it.[135] The leading authorities on constructive trusts in this context are Lankow v Roseand Wakenshaw v Wakenshaw.22 In Lankow v Rose, while that case concerned de factorelationships, Hardie Boys J said:23The essential requirements I see to be twofold: that the plaintiff contributed inmore than a minor way to the acquisition, preservation or enhancement of thedefendant's assets, whether directly or indirectly; and that in all thecircumstances the parties must be taken reasonably to have expected that theplaintiff would share in them as a result. Both statements need someamplification. In the first place, by contributions to assets one is not referringto those contributions to a common household that are adequatelycompensated by the benefits the relationship itself confers. The contributionmust manifestly exceed the benefits. Putting it in conventional estoppel terms,the plaintiffs contributions must have been to his or her detriment; or inCanadian terms they must have resulted by the end of the relationship in theenrichment of one to the juristically unjustified deprivation of the other.Further, the contributions need not be in money; they may be in services or inany other respect. But there must be a causal relationship between thecontributions and the acquisition, preservation or enhancement of thedefendant's assets for, as a claim to a constructive trust is a proprietary claim,a claim to an interest in property, the contributions must have been made toassets; not necessarily to particular assets, but certainly to the defendant'sassets in general. The contributions may then be recognised by the impositionof a trust over a particular asset or particular assets, which may in turn bequantified or satisfied by a monetary award.[136] In Wakenshaw, concerning a dispute between the deceased's son and daughter-in-law, the Court of Appeal further stated:24In particular, those cases have established that it is necessary for a person whomakes such a claim to establish that more than a minor contribution was madeto the acquisition, preservation or enhancement of the defendant's assets,whether directly or indirectly; and that in all the circumstances both partiesmust be taken reasonably to have expected that the claimant would share inthe assets as a result. While the contributions do not need to be monetary innature, there must be a causal relationship between the contributions and the22 Lankow v Rose [1995] 1 NZLR 277, (1994) 12 FRNZ 682 (CA); and Wakenshaw v Wakenshaw[2017] NZCA 252, [2018] NZAR 532.23 Lankow v Rose, above n 22, at 686.24 Wakenshaw v Wakenshaw, above n 22, at [25].acquisition, preservation or enhancement of the defendant's assets; and thecontributions that are made must manifestly exceed any benefits that theclaimant derives from the arrangement.25[137] The Court of Appeal has more recently considered constructive trusts in tworecent decisions. In Almond v Read, the Court described constructive trusts as beingdivided between institutional constructive trusts and remedial constructive trusts,relying on the formulation of the distinction as formulated by Tipping J in FortexGroup Ltd (in rec and liq) v MacIntosh:26An institutional constructive trust is one which arises by operation of theprinciples of equity and whose existence the Court simply recognises in adeclaratory way. A remedial constructive trust is one which is imposed by theCourt as a remedy in circumstances where, before the order of the Court, notrust of any kind existed.The difference between the two types of constructive trust, institutional andremedial, is that an institutional constructive trust arises upon the happeningof the events which bring it into being. Its existence is not dependent on anyorder of the Court. Such order simply recognises that it came into being at theearlier time and provides for its implementation in whatever way isappropriate. A remedial constructive trust depends for its very existence on theorder of the Court; such order being creative rather than simply confirmatory.[138] The Court identified that one common category of constructive trusts is wherecontribution has been made to the acquisition, improvement or maintenance ofproperty or its value by a party other than a registered proprietor. The Court referredto the elements set out by Tipping J in Lankow v Rose that a claimant must prove inorder to establish that equity should regard as unconscionable a defendant's denial ofa claimant's interest.27[139] The Court of Appeal was clear that where a contribution is made on the basisof a pre-existing common intention that the contribution will result in a proprietaryinterest, there will be no difficulty in establishing a reasonable expectation.28 Indeed,25 Lankow v Rose, above n 22, at 282. This reasoning has been referred to on numerous occasions,including in Vervoot v Forrest [2016] NZCA 375, [2016] 3 NZLR 807 at [45]–[47]; Watson vTaylor [2002] NZFLR 59 (HC) at [41]–[46]; Glass v Hughey [2003] NZFLR 865 (HC) at [38]–[43]; Harvey v Beveridge, above n 18, at [9]–[13]; Marshall v Bourneville [2013] NZCA 271,[2013] 3 NZLR 766 at [27]; Hunt v Ogle [2003] NZFLR 1025 (HC) at [23]–[24]; and Stubbs vHolmes [1999] NZFLR 780 (HC) at 787. See also Andrew Butler (ed) Equity and Trusts in NewZealand (2nd ed, Thomson Reuters, Wellington, 2009) at [13.2.4]26 Almond v Read, above n 16, at [64]; citing Fortex Group Ltd (in rec and liq) v MacIntosh [1998]3 NZLR 171, (1998) 6 NZBLC 102,535 (CA) at 171–172.27 Lankow v Rose, above n 22, at 294.28 Almond v Read, above n 16, at [69].where there has been an express common intention applicable to the circumstancesthat have arisen, there is no need to fall back on reasonable expectations.29 The Courtwent on to refer to the observation of Glazebrook J in Chodar, that the purpose of aconstructive trust is generally not to create an ongoing trust relationship but rather toforce the disgorging of money or property by the constructive trustee; thus it is a"means to an end".30[140] The law relating to a common intention constructive trusts has been consideredfurther in this Court and the Court of Appeal, in Mills v Laboyrie.31 In this Court,Edwards J set out in some detail the development of the law relating to constructivetrusts in both New Zealand and England.32 On the facts of the case before her,Edwards J concluded that the common intention in the arrangement in question wasunequivocal. Her Honour then addressed the questions of reliance on the arrangement,and what detriment was caused, or advantage obtained. The final aspect her Honourconsidered was whether the element of unconscionability was established. Havingconcluded that the claimants relied on the arrangement to their detriment, and that itwould be unconscionable for the defendant to depart from the arrangement, Edwards Jfound that the requirements for an institutional constructive trust were made out in thefactual circumstances before her.[141] In the same proceedings, the Court of Appeal upheld the Edwards J's factualfindings on both contributions and common intention. The Court noted that as thequestion of reliance was not in dispute, "the prerequisites for recognition of a[common intention constructive trust] were established".33[142] The Court of Appeal nonetheless went on to discuss legal questions raised bythe appellant as to the correct approach to causes of action based on a commonintention constructive trust and the Pallant v Morgan equity. Of relevance for presentpurposes is that the Court clarified that, in its view, a common intention constructivetrust is not precisely the same as, but is a close relation of, a reasonable expectation29 Gormack v Scott [1995] NZFLR 289 (CA).30 Chodar, above n 15, at 382.31 Laboyrie v Mills [2020] NZHC 700; and Mills v Laboyrie [2022] 2 NZLR 258, [2021] NZCA 450.32 Edwards J was also required to consider the Pallant v Morgan equity. See Pallant v Morgan [1953]1 Ch 43, [1952] 2 All ER 951.33 Mills v Laboyrie, above n 31, at [46].constructive trust.34 The Court said that "either pathway provides the basis for theCourt to recognise a constructive trust so as to prevent an unconscionable result".35The Court gave two reasons for this conclusion.36 First, that it is unnecessary to fallback on reasonable expectations if a common intention is apparent. Second, remediesmay differ as between a constructive trust based on expectations and one based on acommon intention, as the remedy for the latter may be disproportionate to thecontribution.[143] The Court of Appeal also briefly addressed whether a common intentionconstructive trust can be established without contribution, sharing the doubtsexpressed by the Court in Harvey v Beveridge as to evidence of contribution being arationale for the distinction between reasonable expectations and common intentionconstructive trusts.37[144] It is the case then, as ultimately accepted by all parties, that as a matter of lawa claim founded on a common intention constructive trust is available in principle inthe present case. In light of the above case law, I consider that to succeed in her claimin this regard, Cindy must establish that:(a) there was a common intention between Cindy and Denis that, on Denis'death, Cindy should hold the shares in the companies and/or Cindy andDenis had a reasonable expectation that on Denis' death, Cindy shouldhold the shares in the companies;(b) Cindy relied on this common intention or reasonable expectation;(c) Cindy contributed in more than a minor way to the maintenance,preservation and improvement of the companies and therefore theshareholdings in the companies;34 Mills v Laboyrie, above n 31, at [53].35 At [54].36 At [53].37 At [55].(d) Cindy suffered detriment in that she was under-remunerated for hercontributions to the companies and the companies' shareholders(including Denis) benefitted from those contributions; and(e) overall, it would be unconscionable for Denis' estate to retain the sharesin the companies, and they should be transferred to Cindy.[145] I now turn to consider the evidence relevant to this claim, some of which I havealready discussed in the context of the TPA claim.[146] I accept:(a) Cindy's evidence in relation to the work she carried out for thecompanies, from 1999 to the present, supported by the evidence givenby Alan, Bryce, Mr Pahl and Mr Robertson;(b) that Cindy has made both indirect and direct contributions that are morethan minor to the preservation and enhancement of Denis' shares,through her work and services for the two companies;(c) that the formulation of a succession plan in this context, allowing Denisand Alan to have confidence that their respective families and legacieswould be continued to be upheld, constitutes a significant contributionto the preservation and enhancement of Denis' shares, going above andbeyond what is expected of a typical employee, which answers thecontention that she had already been adequately renumerated at thetime of Denis' death;(d) that Cindy was under remunerated in comparison to the remunerationshe would have received in an equivalent position not in her familycompany, as put in Mr Robertson's evidence;(e) that there was a common intention shared by Denis and Cindy thatCindy was ultimately to own all his shares in the companies, and thatthis was a reasonable expectation given Cindy's significantcontribution to the companies over a period of more than 20 years, andcommitment to the succession plan conceived of by Denis, Alan, Bryce,and herself, which accounted for the desire that the companies remainfamily owned and operated; and(f) that Denis also wished to ensure that Lynette received a passive incomefrom the companies.[147] I am ultimately satisfied in the circumstances that there was a commonintention shared by Denis and Cindy that Cindy was to own all his shares in thecompanies on his death. Accordingly, I have no doubt that it would now beunconscionable for Cindy to be denied the interest in the shares that were to pass toher upon her father's death.[148] I do not consider that Denis' interaction with the companies during his lifetimeis inconsistent with the recognition of a constructive trust arising at the time of hisdeath. The holding of the shares by the executor pursuant to a constructive trust forCindy's benefit does not necessarily raise an issue of whether Denis himself held thoseshares on trust for Cindy during his lifetime. The common intention as illustrated inthe evidence was that the shares would pass to Cindy at the time of Denis' death. Whilethere is evidence to suggest that the transfer of the shares may have occurred in adifferent manner had Denis retired for a period prior to his death, those are not thecircumstances currently before the Court. That matters may have progresseddifferently in different circumstances is of no real import, as I am satisfied on theevidence that a there was a common intention that the shares would pass to Cindyupon Denis' death, subject to some provision for Lynette during her lifetime.[149] I conclude that in the last three months of Denis' life, Denis, confronted by hismortality, was simply unable to take steps to provide the clarity that his family wouldhave benefited from in relation to what he intended should happen to his shares. In myview, it must be the case that Denis intended for his only child to receive his shares onhis death, after she has worked for this family held business for more than 20 years.While I acknowledge the legal significance of a will, the terms of Denis' will cannotbe the end of the matter in the circumstances as I have found them.[150] Therefore, if my finding that Cindy's claim under the TPA is successful isincorrect, I record that I would have found that a common intention constructive trustis made out in the circumstances. I would have found that the Guardian Trust holdsDenis' shares in the companies on trust for Cindy, and that therefore they do not forma part of Denis' residual estate. I would also have found that the trust under whichCindy holds Denis' shares is subject to Lynette receiving some income from the sharesduring her lifetime. As outlined in the context of the TPA claim, I consider that theappropriate level of income for Lynette is established by reference to a 10 per centshare of the annual net profits earned by CJL. This reflects the discussions Denis hadwith Cindy and Mr Robertson, and with his brother Alan, where reference was madeto a 25 per cent share of Denis' 40 per cent shareholding. I address the detail of howthis outcome might be achieved below.Family Protection Act claim[151] Given my conclusions above, it is not necessary to express a final view onCindy's claim pursuant to the Family Protection Act. I nonetheless observe that a claimunder the Family Protection Act does not sit well with the factual circumstancesestablished. Had it been necessary to determine whether Denis had fulfilled his moralduty of provision to his only child, I consider it likely that he provided adequately forCindy. While the provision of the half interest in the Family Home to Cindy is residual,when it accrues, it is a significant provision. Cindy also owns her own home worthapproximately $1 million, subject to a small mortgage of about $50,000, and has herexisting shares in the companies, which are worth approximately $500,000. Mytentative view is that any further award to Cindy would not be justified based on needor recognition, as established in the caselaw.Implementation of relief[152] In relation to the TPA claim and the common intention constructive trust claim(in the alternative), I have concluded that Denis' promise or the common intentionmeans that Cindy should receive Denis' shares. However, the promise or commonintention must be understood as including the provision of an income for Lynette fromCJL. I have found that the appropriate level of income for Lynette is established byreference to a 10 per cent share of the annual net profits of CJL, during her lifetime.This reflects that the evidence establishes, in my view, that Denis wished that Lynettebe provided with approximately $40,000–$50,000 per annum, for the remainder of herlifetime. Mr Robertson's evidence was that he advised Denis that if Lynette had a lifeinterest in 25 per cent of his shares (equivalent to 10 per cent of CJL's total shares),she would receive an annual income of approximately $50,000, and that Denis washappy with that plan.[153] The focus of the parties at the hearing was on an "all or nothing" outcome asto whether Cindy's claims was made out or not. The parties did not address thepossibility of the outcome I have determined is appropriate. In these circumstances, Iconsider that fairness to the parties requires that they have the opportunity to makesubmissions about how the relief I have ordered should best be implemented. Inanticipation of those submissions, I have considered some possible approaches.[154] One approach would be to vest all the shares in Cindy, subject to a life interestin 25 per cent of Denis' 40 per cent shareholding in CJL in favour of Lynette. However,this may give rise to further conflict between the parties as to the governance of thecompanies. I am mindful that this dispute has soured relations between Lynette on theone hand, and Cindy and the extended Chambers family, on the other, and of theconcerns expressed by Lynette in her evidence about being a minority shareholder inthe companies.[155] Another approach would be to vest Denis' shares in Cindy, subject to a personalobligation on Cindy to provide income for Lynette with funds derived from Denis'40 per cent shareholding, for the remainder of Lynette's lifetime, calculated as 10 percent of the annual net profits earned by CJL.[156] A variation on this would be to vest all Denis' shares in Cindy, subject to anobligation on Cindy to provide a specified yearly payment of say $50,000 to Lynette,for the remainder of her lifetime. But the award of such a specific sum would havelittle regard to the ongoing operation, viability, and profitability of the companies.Were the companies to experience financial difficulty, an obligation to provide aspecific monetary payment yearly could have an unfairly detrimental effect upon theirsolvency and the other shareholders.[157] A final option would be for the estate to retain 25 per cent of Denis' shares inorder that Guardian Trust could administer the provision of an income stream toLynette to the same level noted above.[158] The parties may be able to agree how to give effect to my decision as to liabilityon Cindy's claims and the relief awarded in principle. If that is the case, I ask counselto advise the Court by memorandum.[159] In the event that agreement is not possible, I propose the following timetablefor the filing of submissions on the implementation of the relief I have awarded inprinciple:(a) Cindy is to file and serve submissions by 5:00pm on Thursday31 August 2023;(b) Lynette and the Guardian Trust are to file submissions by 5:00pm onThursday 21 September 2023; and(c) any reply submissions from Cindy must be filed and served by 5:00pmon Thursday 28 September 2023.[160] If the parties agree, I will make a decision on the papers. If the parties considera hearing is required, counsel may liaise with the registry to schedule a hearing beforeme as soon as possible after 28 September 2023. The hearing will be of no more thantwo hours and may be held via AVL.Result[161] Cindy's claim under the TPA is successful. Cindy is entitled to Denis' sharesin the companies. This entitlement is subject to Cindy providing an income to Lynetteduring Lynette's lifetime. That income for Lynette is to be calculated by reference toa 10 per cent share of the annual net profits earned by CJL. The implementation ofrelief is to be determined following the receipt of further submissions from the parties.Costs[162] If the parties cannot agree on costs, I reserve leave for memoranda to be filedin the usual way once the implementation of relief is determined whether by agreementbetween the parties or by order of the Court.McQueen JSolicitors:Richmond Law, Nelson for PlaintiffPerpetual Guardian, Wellington for Defendant