SEXTON V TITIRO TRUSTEE COMPANY LTD AND ANOR HC AK CIV 2006-404-5666

SEXTON V TITIRO TRUSTEE COMPANY LTD AND ANOR HC AK CIV 2006-404-5666

The Deed complied with the statutory attestation formalities and is not invalid solely because a third party added witness particulars, but promises to gift in the future are unenforceable absent confirmation when the gift is to take effect (Morris). The contemporaneous gift evidenced by the Deed is voidable for...

Source-derived case information.

Citation
openlaw-a86b4fde_901d_462e_a076_efb03d832e69.pdf
Parties
Plaintiff (executor and Trustee of the Estate of the Late Alwine Alitea Norah Claridge): Howard Arthur Sexton; First Defendant (trustee of Midridge Family Trust): Titiro Trustee Company Ltd; Second Defendant: Richard John Claridge
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 May 2008
Procedural Posture
Civil (recovery of Funds; Equitable Relief) / Trial Judgment
Outcome
Judgment for plaintiff against Titiro Trustee Company Ltd for repayment of alleged gift; counterclaim dismissed; no personal judgment against Richard John Claridge.
Legal Topics
Formalities of Deed, Gift Versus Loan, Undue Influence, Capacity to Contract, Testamentary Promises, Rectification, Costs and Interest
Property Law Trusts and Trustees Equity Contract Law Elder Law Formalities of Deed Gift Versus Loan Undue Influence +4 more

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Parties

Howard Arthur Sexton

Plaintiff (executor and Trustee of the Estate of the Late Alwine Alitea Norah Claridge)

Titiro Trustee Company Ltd

First Defendant (trustee of Midridge Family Trust)

Richard John Claridge

Second Defendant

Procedural Posture

Civil (recovery of Funds; Equitable Relief) / Trial Judgment

Legal Issues

  1. 1 Does the Deed comply with statutory formalities for a deed (s 4 Property Law Act 1952 / s 9 Property Law Act 2007)?
  2. 2 Does the Deed evidence a gift or a loan and are future promises to gift enforceable?
  3. 3 Should the Deed be rectified to record an omitted intended gift?

Ratio Decidendi

The Deed complied with the statutory attestation formalities and is not invalid solely because a third party added witness particulars, but promises to gift in the future are unenforceable absent confirmation when the gift is to take effect (Morris). The contemporaneous gift evidenced by the Deed is voidable for undue influence because the donor was vulnerable and the donee abused trust; accordingly the trustee is liable to repay the sum advanced and the claim against the trustee for $108,000 succeeds, while no personal liability is imposed on Richard.

Court Disposition

Judgment for plaintiff against Titiro Trustee Company Ltd for repayment of alleged gift; counterclaim dismissed; no personal judgment against Richard John Claridge.

Orders

  • Judgment entered in favour of the plaintiff against Titiro Trustee Company Ltd in the sum of $108,000.
  • Interest awarded at 7.5% per annum from date of issue of the proceeding.