TEAM BARRY LIMITED AND ORS V FURLONG AND ORS HC AK CIV.2003-404-5593

TEAM BARRY LIMITED AND ORS V FURLONG AND ORS HC AK CIV.2003-404-5593

The Court declined to remove the caveat because there are substantial unresolved disputes as to the provenance, quantum and legal status of funds allegedly applied to 18 O'Neills Avenue and as to what the trustees knew; these factual and accounting uncertainties make immediate removal unjustified. The Court rescinded prior interlocutory orders requiring accounting of fight proceeds because the plaintiffs accepted the EMA ended on 10 October 2003, removing the legal foundation for those orders; sanctions were dismissed for the same reason. Finally the Court ordered re-pleading and case management steps to resolve remaining substantive disputes.

Citation
openlaw-3c908195_e9d6_4453_a98c_18dc7a71275d.pdf
Parties
First Plaintiff: Team Barry Limited; Second Plaintiff: Tuaman Inc Limited; Third Plaintiff: Martin Pugh; Fourth Plaintiff: Kevin Barry; First Defendant: Anthony J Furlong; Second Defendant: Andrew Bowell Kemp; Third Defendant: Mafaufau Sita
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 January 2006
Procedural Posture
Civil (high Court) / Interlocutory Applications (reserved Judgment)
Outcome
Application by trustees to remove caveat dismissed; application for sanctions dismissed; prior interlocutory orders requiring fight proceeds to be paid into trust account rescinded; plaintiffs ordered to file amended statement of claim and case management steps directed.
Legal Topics
Constructive Trust, Caveat, Fiduciary Duty, Exclusive Management Agreement, Equitable Charge, Valuation and Quantum of Improvements, Discovery/accounts, Sanctions for Breach of Interlocutory Orders
Equity Trusts Property Law Company Law Contract Law Civil Procedure Injunctions Constructive Trust +7 more

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Parties

Team Barry Limited

First Plaintiff

Tuaman Inc Limited

Second Plaintiff

Martin Pugh

Third Plaintiff

Kevin Barry

Fourth Plaintiff

Anthony J Furlong

First Defendant

Andrew Bowell Kemp

Second Defendant

Mafaufau Sita

Third Defendant

Procedural Posture

Civil (high Court) / Interlocutory Applications (reserved Judgment)

Legal Issues

  1. 1 Whether Mr Tua's caveat over 18 O'Neills Avenue should be removed
  2. 2 Whether trustees of Baron & Lunar Trust hold property subject to a constructive trust or equitable charge because Tuaman funds were applied to improvements
  3. 3 Whether sanctions should be imposed for alleged breaches of interlocutory orders and undertakings relating to fight proceeds

Ratio Decidendi

The Court declined to remove the caveat because there are substantial unresolved disputes as to the provenance, quantum and legal status of funds allegedly applied to 18 O'Neills Avenue and as to what the trustees knew; these factual and accounting uncertainties make immediate removal unjustified. The Court rescinded prior interlocutory orders requiring accounting of fight proceeds because the plaintiffs accepted the EMA ended on 10 October 2003, removing the legal foundation for those orders; sanctions were dismissed for the same reason. Finally the Court ordered re-pleading and case management steps to resolve remaining substantive disputes.

Court Disposition

Application by trustees to remove caveat dismissed; application for sanctions dismissed; prior interlocutory orders requiring fight proceeds to be paid into trust account rescinded; plaintiffs ordered to file amended statement of claim and case management steps directed.

Orders

  • Trustees' further application to remove Mr Tua's caveat over 18 O'Neills Avenue dismissed.
  • Plaintiffs' application for sanctions against Mr Tua and Mr Tuigamala dismissed.