ALMOND v READ [2019] NZCA 26

ALMOND v READ [2019] NZCA 26 [1 March 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA730/2015[2019] NZCA 26BETWEEN JANFERIE MAEVE ALMONDAppellantAND BRUCE JAMES READFirst RespondentETHNE GLADYS READSecond RespondentCHRISTOPHER JOHN READThird RespondentHearing: 29 August 2018Court: Winkelmann, Duffy and Peters JJCounsel: S I Perese for AppellantG D Stringer and A Dhanji for First RespondentN W Woods for Second and Third RespondentsJudgment: 1 March 2019 at 12 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondents one set of costs for a standard appealon a band B basis.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)Table of ContentsPara No.Introduction [1]Background facts [8]Arrangements to purchaseMs Almond's account [11]Bruce Read's account [15]Mrs Read's account [19]Chris Read's account [21]Settlement [27]Construction of dwellings [28]Garage and purchase of R's share in the Property [32]Payments by the respondents toward mortgage andoutgoingsBruce Read [35]Mrs Read [39]Chris Read [41]Further borrowing by Ms Almond [45]The judgment [46]Bruce Read [52]Mrs Read [54]Chris Read [57]Ms Almond [59]The law [61]Arguments on appeal [73]First ground of appeal: the finding of common intention [80]The solicitor's file notes [83]Mr and Mrs Reads' letter to the Franklin DistrictCouncil[94]Mrs Read's will of 9 June 2010 [100]Was there sufficient credible evidence to justify a findingof common intention? [106]Chris Read's payment of the mortgage [119]Other difficulties with this ground of appeal [125]Differing narrative [126]Ms Almond's credibility [128]Second ground of appeal: constructive trusts [135]Third ground of appeal: breach of fiduciary duty [138]Analysis [141]Costs [147]Result [154]Introduction[1] The parties dispute the basis upon which a rural property in DrurySouth Auckland (the Property) was bought and developed, and the basis on which itis owned. The parties are all members of one family. The appellant, Ms Almond, isthe sister of Bruce and Christopher Read and the daughter of Mrs Ethne Read —the latter three, the respondents.[2] Although Ms Almond is the sole registered proprietor of the Property,the respondents allege they helped pay for the Property and the construction of the twohouses now on it (one for Ms Almond and one for her parents, Mrs Ethne andMr Fred Read). They allege these contributions were made pursuant to an agreementthat each of the parties would have a beneficial interest in the Property proportionateto their respective financial contributions. The respondents say Ms Almond holds titlein the Property as constructive trustee for their individual interests and nominatedshares. Mrs Read further alleges that Ms Almond misused an enduring power ofattorney that she had under the Protection of Personal and Property Rights Act 1988in respect of Mrs Read, misapplying Mrs Read's funds for her own personal benefit.[3] In the High Court, Ms Almond maintained that she provided all of the purchasemoney for the Property.1 She argued that, while her brothers may have madecontributions to the cost and maintenance of the Property after purchase, thosecontributions were made in recognition of care she would provide to her parents —the rationale, she argues, for them living on the same piece of land. As to the regularpayments she received from her parents, she claimed these were rent and not mortgagepayments.[4] Thomas J rejected Ms Almond's evidence that the money used to purchasethe land was hers.2 She found that Ms Almond had agreed with the respondents thatthe Property was to be owned by the parties in proportion to their respective financialcontributions to the overall project. This included the cost of the land, construction ofthe dwellings and other improvements.31 Although she accepted her parents provided a deposit, she said she later paid it back.2 Read v Almond [2015] NZHC 2797 at [84], [85] and [104] [High Court judgment].3 At [84].[5] On appeal, Ms Almond shifts the focus of her argument. She does notchallenge the findings of the High Court Judge as to the fact or source of contributionstoward the purchase of the Property, mortgage payments and construction ofthe houses. Instead she argues that the High Court Judge erred in finding that allparties had a common intention to pool resources to buy the Property and develop itin return for a proportionate share in the Property. She invites us to take a differentapproach to the Judge as to the legal basis on which the respondents made theirpayments. Properly construed, she argues, this was an arrangement between her andher parents whereby it was agreed her parents would help her buy and developthe Property but with no expectation of a proprietary interest in the land. Instead, inreturn they would receive Ms Almond's commitment to care for them as they aged.[6] Ms Almond argues that even if the Judge was correct to recognise aconstructive trust, the principles were not applied correctly. In a family arrangementsuch as this, focused on the provision of care for the parents, Ms Almond'snon-financial contribution to the care of her parents should have been recognised.[7] Finally, in relation to Mrs Read's claim that Ms Almond misused the power ofattorney, Ms Almond submits the Judge had an inadequate evidential basis to makewhat was in substance a finding of dishonesty.Background facts[8] In July 2002, Ms Almond settled the purchase of bare land located in Drury for$190,000. After the purchase was settled, a garage was built on the land and used atthe time to store Ms Almond's possessions whilst construction of the dwelling wasunderway. Two houses were then built. A larger house for Ms Almond and her twodaughters, and a smaller house, referred to as a subsidiary dwelling, for Mr andMrs Read.[9] The Almonds and Mr and Mrs Read lived side by side in this way for a numberof years between late-2003, when the construction of both dwellings was completed,and June 2009, when Mr Fred Read died. Following Mr Read's death, Bruce Readmoved into the smaller house to live with his mother.[10] Over time, relations between Bruce Read and Ms Almond, and Mrs Read andMs Almond deteriorated. In January 2013, Ms Almond made an allegation of assaultagainst Mr Read and obtained, on an ex parte basis, a temporary protection orderagainst him — an order that was later discharged. She then served a trespass noticeon Bruce Read and had him removed from the Property by the police. The police werealso involved in the removal of Mrs Read from the Property into a rehabilitationfacility. Mrs Read later moved into a retirement home where she lives to this day.Family relations have entirely broken down.Arrangements to purchaseMs Almond's account[11] In the High Court, Ms Almond's evidence was that caring for her mother andfather had always been her responsibility. The respondents do not dispute that, priorto the break-down in family relations, Ms Almond was a loving daughter who providedsupport and care to her mother following the death of her father. But Ms Almond alsoclaimed that while she was close to her parents, overall the Reads were not a closefamily — an allegation that is disputed. On her evidence, her relationship with herbrother Bruce was particularly poor such that she would not have been willing to buya property with him or have him live on the property, and equally he would not havebeen prepared to help her out. Ms Almond said that, if anyone provided help andsupport within the family, it was her; citing occasions when she had been supportiveof Chris Read while he trained for his medical career.[12] Ms Almond said that in the early part of 2000, she was recently divorced andconsidering purchasing a property. Her parents asked that she buy a large property sothat they could build a dwelling on the land and she would be able to care for them.They agreed that if that occurred, they would pay $200 a week in rent, and thatChris Read would pay this on their behalf. Ms Almond said there were furtherconditions to the agreement; she would not be required to work, her brothers wouldmake contributions to the Property to assist her in caring for their parents, andBruce Read would never be permitted to live on the Property. However there was noarrangement that anyone other than Ms Almond would have a proprietary interest inthe Property.[13] As to payment of the purchase price, her evidence was that she paid a depositof $10,000. While she accepted that money came from her parents, she said itrepresented repayment by them to her of two loans she claimed to have made to themwhen they owned a business in Napier.4 The rest of the purchase price, she said, wasintended to come from the realisation of investments her brother Bruce had made onher behalf in the early 1970s. At the time of purchase, those investments were worth$180,000. However, her father, who handled getting this money back from Bruce forher, told her that Bruce could only manage to give her $130,000 and would pay the restlater.[14] Ms Almond said that because of the late repayment of the balance of $50,000,she still required a loan from the bank to make up the balance of the purchase price.The loan of $60,000 was $10,000 more than needed but she borrowed the extra amountbecause Mr Read asked her to so that he and Mrs Read could use the money forimprovements to the Property. She denied that she received any money from herbrothers to help fund the purchase.Bruce Read's account[15] Bruce Read's account of events was very different to Ms Almond's. He saidhe had a good relationship with his sister, which only began to deteriorate when hechallenged her over her handling of his mother's money. From an early stage, he wasinvolved in general discussions with his parents and Ms Almond about buying alifestyle block with two houses on it — one for Ms Almond and her daughters, and theother for Mr and Mrs Read. He was asked to "go in" with them if they found a suitableplace because they did not think they would be able to get enough money together tofund the purchase themselves. He said that he was told by both Ms Almond and herparents that Ms Almond was not in a position to make any contribution towards thepurchase price, as she had not yet sold her existing home following her divorce. Thesediscussions developed over time, but generally took place when he went to his parents'home in Tuakau for Sunday lunch, a weekly event, or on the odd occasion they wentto Ms Almond's house for Sunday lunch. There were also discussions withChris Read, who would phone his parents from the United States most Sundays.4 We note that Ms Almond also says in evidence that she repaid this money on 29 May 2003.[16] Bruce Read said while he generally discussed arrangements with his father, healso discussed them directly with Ms Almond. Initially, his father told him thatownership of the Property would be recorded in the names of each member of thefamily in the proportion to the financial contributions each made to the Property.However, a few weeks after the initial discussion, he was told by his father that inorder for his sister to raise the necessary money by way of a mortgage, title to theProperty had to be taken in her sole name. But his father told him that once his sisterhad repaid the mortgage, title to the Property would then be changed to record all ofthe family as owners of the Property in proportion to their contributions. Mr Readsaid he would keep a record of everybody's financial contributions so that everyonewas clear about who had paid what.[17] These arrangements were not formally documented, Bruce Read claimed,because they were family and trusted each other. He said he was content to rely on arecord his father kept of contributions in a notebook. The uncontested evidence wasthat Mr Read did indeed keep records of expenditure on the Property but with his deaththose records have been lost.[18] Bruce Read said that he paid $130,000 to enable the purchase to proceed.This was his own money and not money he invested for his sister. He said thatthroughout Ms Almond's adult life she regularly sought financial assistance fromthe family, including him. He said she never had any spare money, so the notion thatshe gave him spare cash to invest in shares was "ludicrous".Mrs Read's account[19] Mrs Read's evidence was that she and her husband undertook the sharedpurchase primarily to help out Ms Almond. They had always been very supportive ofMs Almond through a number of personal difficulties she faced. Ms Almond'sdaughter [S] had long-term health issues and, because of this, they had provided a lotof support to Ms Almond. Following Ms Almond's divorce they wanted to ensure thatMs Almond and her daughters had settled living arrangements. Mrs Read alsoacknowledged that part of her thinking was that as she and her husband got older theywould also require some help and it would be convenient if they lived on the sameproperty as Ms Almond.[20] She said that she and her husband paid $10,000 to fund the initial deposit onthe Property and denied that Ms Almond had earlier lent that amount to them. As tothe overall arrangement, although she could not remember the exact amount each partycontributed to the Property, she was sure the idea was that the family would ownthe Property, "all of us", in proportion to their contributions.Chris Read's account[21] Chris Read's evidence corroborated that of his brother and mother. He saidthat during a Christmas family holiday in the Bay of Islands in 2001, his parents andMs Almond discussed buying a piece of land. His father told him that he and Brucewould have to pay for most of the land value as Ms Almond did not have the moneyto do so and their parents had yet to sell their home in Tuakau. Mr Read said it wasimportant to do this as Ms Almond was undergoing a divorce, was on a benefit, hadlittle money and there was no way she could buy her own house. His father wanted tosee Ms Almond and her children settled and thought a family-owned property wouldbe a good investment for everyone. According to Chris Read, Mr Read had mentionedthe idea that Bruce could live in the Property when he got older.[22] Chris Read said he told his parents and Ms Almond he was interested incontributing to the land, but only if he received an ownership interest in the Property.Ms Almond "readily agreed". He knew Ms Almond would need a mortgage to payfor the construction of her house and Mr Read alerted him to the possibility of furtherfunds being required for property improvements. Although he thought there would besome property sharing agreement put in place, he was content to leave that to his father.Sometime after the purchase he learned that there was no such agreement but was notconcerned. His father reassured him that he would keep an accurate record of allcontributions in order to finalise ownership shares. Chris Read said he knew his fatherwas both careful and prudent in the way he would record everyone's contributions.It was apparent from the evidence of all three children that they loved and trusted theirfather. They regarded him as competent, loving and a man of his word.[23] Chris Read accepted that Ms Almond told him she would look after theirparents, but he says that was not fundamental for him as he had no confidence in herfulfilling that commitment. Rather it was the trust and confidence he had in his fatherthat was critical to him investing in the Property in anticipation of his contributionsbeing reflected in a share of equity.[24] As to his contribution to the initial purchase, Chris Read said that it wasintended to be $30,000: a payment of $5,000 drawn by his parents from hisNew Zealand cheque account and a further $25,000. As to the latter amount,Chris Read said that in about 2000 he lent Ms Almond money to buy a property inNew Plymouth. It was agreed that when that property was sold, rather than payingthat $25,000 to him, that money would be used to purchase the Property, on the basisthat he received a corresponding equity interest.[25] The evidence was that the $25,000 from the sale of the New Plymouth propertywas paid to Ms Almond shortly before the purchase of the Property settled. It was notused by her for the purchase because she took out the $60,000 loan. In 2002 the sumof $8,590 was withdrawn from his New Zealand cheque account Mr and Mrs Readoperated for Chris and paid to Ms Almonds cheque account. This payment,he claimed, included the further $5,000.[26] Ms Almond denied the $25,000 was an equity contribution by her brother.She claimed that the money her brother contributed to the New Plymouth propertywas in substance a payment from him to her in recognition of the help she had providedwhen he was studying.Settlement[27] Bruce Read contributed $130,000 towards the purchase. Ms Almond obtaineda loan of $60,000 from the ASB Bank, which was secured over the Property.That loan, plus the deposit paid by Mr and Mrs Read of $10,000, made up the totalpurchase price of $190,000. There was a surplus after a payment of legal costs ofalmost $8,000 which was paid by the solicitors to Ms Almond, although Mrs Readsaid she did not know of this.Construction of dwellings[28] Shortly after the Property purchase settled, Ms Almond received $105,805.77from her relationship property settlement. She also obtained money from herdaughters' inheritance from their father, with the executors of his estate investing$60,000 in the Property.5 These funds were used to build the larger of the two houses,which Ms Almond and her daughters resided in.[29] Mr and Mrs Read paid for the construction of the subsidiary dwelling.Mrs Read claimed that they also paid for other improvements to the Property inexpectation that their share in the Property would increase to reflect this expenditure.In addition, Mrs Read made a claim in respect of two further payments of $10,000each, made in February and September 2003. Ms Almond denied they werecontributions to the Property, claiming both that one of the 2003 payments was madein respect of a car for her daughter R and also that it was made to enable Ms Almondto make repayments on her own car. She maintained that the September 2003 paymentwas a donation by Mr and Mrs Read to the Seventh Day Adventist Church.[30] Finally Mrs Read claimed $12,500 for money paid by her for the Property'sdriveway and landscaping works. The evidence was that the money to fundthe driveway was received by Mrs Read on the death of her sister, Mavis.[31] Ms Almond's evidence was that Mrs Read, honouring her sister's wishes,wanted the girls to have half of the money Mrs Read inherited from her sister.The remaining half was split between her and Ms Almond. Ms Almond accepted thatthis half was used toward the driveway.Garage and purchase of R's share in the Property[32] Bruce Read alleged he paid a further $6000 to assist with the construction of agarage on the Property. This was primarily for the benefit of Ms Almond, as it was tobe used to store her furniture which had been in the matrimonial home. Bruce Readsaid that Ms Almond expressed her gratitude for his assistance. Later she encouraged5 Her daughters are from an earlier marriage. Their father died, leaving his assets in trust for them.him to increase his share in the Property by buying out her daughter [R's] share, whenher daughter wanted to buy a property of her own. He said he paid the $50,000 forthat purpose.[33] Ms Almond maintained that any contribution by Bruce Read to the garage waspursuant to a private arrangement with their father and did not involve her. She deniedthe garage was for her benefit.[34] As to Bruce Read's claim to have purchased [R's] share in the Property,Ms Almond denied there was any such agreement. She said the $50,000 he paid wasthe balance of the money Bruce Read had invested for her; in substance he wasrepaying an amount he owed her.Payments by the respondents toward mortgage and outgoingsBruce Read[35] Bruce Read claimed to have paid $1,300 to Ms Almond and $26,901 toMrs Read between June 2002 and December 2012, of which approximately $24,552was paid between 9 October 2009 and 28 December 2012 when Bruce Read was livingon the Property. He understood that he paid half the mortgage and Mrs Read paidthe other half, and that this arrangement was reached when Chris Read stopped payingthe mortgage. He said that Ms Almond expected him to contribute towardsthe mortgage and other expenses associated with the Property. He was asked to payhis share of outgoings into Mrs Read's bank account so that Ms Almond could thentransfer those funds, together with Mrs Read's share, to her own bank account.[36] The evidence was that, from at least February 2012, each month Ms Almondwould present Bruce Read with a slip of paper on which she had written expenses sheclaimed should be paid to her. These listed items such as MTGE (mortgage) andoutgoings both for her parents and the Property.[37] Ms Almond's evidence was that any payments made by Bruce Read into hismother's bank account were simply payments made to support his mother, and notpursuant to any over-arching agreement regarding ownership of the Property.[38] Bruce Read makes no claim in respect of these payments in these proceedings.Mrs Read[39] Mrs Read said that from 19 March 2008 to 31 December 2012, Ms Almondbegan taking money from her account or asking for cheques towards the mortgage.The sum of $114,807 has been traced from Mrs Read's account to Ms Almond'saccount over this time period and that was the sum claimed in respect of the mortgage.[40] Ms Almond claimed those payments represented rent which her parents agreedto pay for their occupation of the smaller dwelling on the Property, expenses associatedwith the subsidiary dwelling (rates and utilities) and reimbursements for paymentsmade by Ms Almond on Mrs Read's behalf.Chris Read[41] Chris Read denied that he funded rental payments by his parents. He said thatshortly after her house was built he was approached about meeting Ms Almond'smortgage payments. His parents and Ms Almond wanted him to service the mortgageand he agreed that he would on the basis that his contributions would increase hisownership share. For that reason, he agreed that his parents could take money fromhis New Zealand bank account to pay the mortgage but on condition that the paymentswere part of his contribution to the Property. He understood the payments to be about$1000 per month, servicing a 20-year loan. He agreed that other money from hisaccount could also be put towards the Property on this basis.[42] Pursuant to this arrangement, between July 2003 and June 2009, $105,206 wastransferred from Chris Read's account to Ms Almond's account. Chris Read said heagreed to this informal arrangement because he knew the payments occurred underMr Read's oversight, and that his father was keeping an accurate account.[43] Mr Read died on 13 June 2009. Bruce Read moved in with his mother at thatpoint, and it seems that the arrangement that Chris Read would pay the mortgage alsothen came to an end, although there does not seem to have been evidence as to theexact circumstances of this.[44] Ms Almond acknowledged that Chris Read helped her parents financially butmaintained that her parents paid rent to her and did not make mortgage payments.She was told by her parents that it was Chris Read's way of contributing because hecould not be present to help with the care of his parents. Her evidence was that noneof Chris Read's money went towards the mortgage. Some of it paid her parents' rent,and some of it was spent on things like ride-on lawn mowers or Christmas presents.She maintained that she alone paid the mortgage on the Property.Further borrowing by Ms Almond[45] As Ms Almond was the sole proprietor of the Property, and had been granted amortgage over it, she was able to draw down further amounts which were and aresecured over the Property. Ms Almond's evidence was that the later loans were loansher father had asked her to take out and, in the case of a $30,000 loan, that her motherhad asked her to borrow after Bruce moved in and did not pay anything. At the dateof the hearing, the loan secured by the Property was $92,265.The judgment[46] In the High Court, the Judge addressed the following factual issues:6(a) What, if anything, did the parties agree about the purchase ofthe Property?(b) Bruce Read:(i) Did the $130,000 contribution to the purchase price forthe Property belong to Bruce Read or Ms Almond?(ii) What was the basis upon which Bruce Read paid $6,000towards the cost of a garage constructed on the Property?(iii) Did Bruce Read purchase [Ms Almond's daughter's] share inthe Property for $50,000?(c) Mrs Read:(i) Did Mrs Read make three payments of $10,000 towardsthe purchase of the Property, and if so, were they made inthe expectation of obtaining a proportionate interest inthe Property?6 High Court judgment, above n 2, at [24].(ii) Was construction of the subsidiary dwelling and contributionsto improvements to the Property made in expectation ofobtaining a proportionate interest in the Property?(iii) Were contributions allegedly to the mortgage over theProperty made in the expectation Mrs Read would obtain aproportionate interest in the Property?(iv) Did Ms Almond act contrary to her duties as Mrs Read'sattorney in relation to the payment of money to her fromMrs Read's bank account?(d) Chris Read:(i) Did Chris Read pay $25,000 or $30,000 towards the purchaseof the Property and, if so, was that payment made inthe expectation of obtaining a proportionate interest inthe Property?(ii) Did Chris Read make contributions to Ms Almond's mortgageand, if so, were the contributions made in the expectation ofobtaining a proportionate interest in the Property?[47] In terms of the parties' agreement as to the purchase and development ofthe Property, the Judge found that the family arrangement was as the respondentsalleged.7 She rejected Ms Almond's evidence that there was never an intention foranyone beside herself to contribute to the purchase of the Property.8 She also rejectedMs Almond's evidence that her parents were elderly and disabled at the time ofthe initial purchase, so it was in their interests to buy a property where they could livetogether and she could look after them.9 The Judge preferred the respondents'evidence that, although elderly, Mr and Mrs Read were not inactive. She was satisfiedthat at the time of the purchase it "was not so much Mr and Mrs Read wantingMs Almond to look after them as it was their wanting to be on hand to help Ms Almondafter her marriage breakup, particularly given [S's] ill health".10[48] Regarding the nature of the family relationship, the Judge found that there wasa degree of trust between Bruce Read and Ms Almond prior to the breakdown of theirrelationship following the death of their father.11 She accepted the respondents'evidence that the conflict between Bruce Read and Ms Almond was only really7 At [84].8 At [84].9 At [64].10 At [64].11 At [82].apparent when Bruce Read began to challenge Ms Almond's use of their parents'money.12 She therefore rejected Ms Almond's evidence that she would never buy aproperty with Bruce Read because of their longstanding conflict.[49] The Judge considered that Ms Almond's version of events was dependent uponher having sufficient funds to buy the house independently, without family assistance,and to then build her home.13 The Judge founds she was not in a position to do this.14[50] Ultimately, the Judge was satisfied that all parties, including Ms Almond,agreed that the Property was to be owned by the parties in proportion to their respectivefinancial contributions to the cost of the land and improvements, and this was clearlyunderstood by all involved.15 The evidence of all three respondents was consistentwith this arrangement and Ms Almond's own conduct (prior to the relationshipbreakdown) was consistent with such an agreement having been made. The Judgefound there was therefore an express common intention shared by Ms Almond andthe respondents that each would own an interest in the Property in proportion to theircontribution to it, such that it would be unconscionable for Ms Almond to denythe respondents' interests.16[51] Applying the principles set out in Lankow v Rose and Gormack v Scott,the Judge was satisfied that an institutional constructive trust arose by operation oflaw, enforceable by the respondents.17 The Judge then went on to determine eachparty's contribution as a basis for that conclusion as follows.Bruce Read[52] In respect of Bruce Read's claims, the Judge found that he contributedthe following money in exchange for a proportionate share in the Property:12 At [83].13 At [67]–[68].14 At [68].15 At [84].16 At [232].17 At [227]; referring to Lankow v Rose [1995] NZLR 277 (CA); and Gormack v Scott [1995] NZFLR289 (CA).(a) $130,000 in July 2002 as a contribution to the purchase price.18She rejected Ms Almond's evidence on this point as "not credible".19(b) $6,000 for the cost of building the garage, as it was an "improvement"to the Property.20 She also accepted that it was built primarily to storeMs Almond's belongings.21(c) $50,000 for the purchase of Ms Almond's daughter's share inthe Property.22 Again the Judge preferred the evidence of Bruce Readon this point, describing Ms Almond's version of events as"not convincing".23[53] She concluded that Bruce Read was entitled to a 26.58 per cent share inthe Property.24Mrs Read[54] The Judge found that Mrs Read contributed the following to the purchase ofthe Property:25(a) $20,000 accounting for the initial $10,000 deposit and further paymentof $10,000 in February 2003. The Judge said that Ms Almond'sevidence about the initial $10,000 deposit and the February 2003payment of $10,000 "was inconsistent and not credible".26 The Judgedid not however allow the claim in respect of the September 2003payment, noting that there was no record of it being received into MsAlmond's bank account.27 Whilst she agreed that a $10,000 donationto the Seventh Day Adventist Church "seems excessively generous18 At [104].19 At [96].20 At [111]–[112].21 At [109].22 At [121].23 At [119].24 At [251].25 At [251].26 At [142].27 At [143].when one is paying for a house to be built, and it seems unlikely this iswhere the $10,000 went" she could not be satisfied that the money wasin fact paid to Ms Almond.28(b) $136,970 for the cost of construction of the second dwelling.29(c) $3,125 for Mrs Read's contribution toward the cost of the driveway.30The Judge reduced the award in respect of this amount because ofMrs Read's concession, during her evidence, that some of the moneymight have been meant for Ms Almond's daughters.31[55] The Judge did not allow Mrs Read's claim for an increase in proprietaryinterest to reflect mortgage repayments.32 While she rejected Ms Almond's claim thather parents paid rent, she found it more likely that the mortgage payments were madewith the intention of helping Ms Almond out without necessarily expecting anever-increasing proprietary interest as a result.[56] The Judge found Mrs Read was entitled to a 24.8 per cent share in the Property.Chris Read[57] In respect of Chris Read, the Judge found that he made the followingcontributions:(a) $30,000 made up of a cash transfer of $5,000 to Ms Almond, and insubstance, the transfer of an existing loan of $25,000 to this Property.33The Judge found that this money had been lent at an earlier time byMr Read to Ms Almond for the purchase of a property atNew Plymouth. The Judge preferred Chris Read's evidence of anagreement with Ms Almond that on the sale of the New Plymouth28 At [143].29 At [156]–[157], [248] and [251].30 At [158], [248] and [251].31 At [158].32 At [180].33 At [188]–[189].property, $25,000 of the sale proceeds which would otherwise go toChris Read to repay the loan would be applied to the Property andtreated as his contribution, giving him a proprietary interest in return.34The Judge found the fact Ms Almond directed the funds away fromthe Property did not alter that agreement as to the basis on which theywere paid; that the payments would entitle Chris Read to aproportionate share in the Property.35(b) $91,061 in payments made directly to Ms Almond on account ofmortgage payments for the Property.36 The Judge rejectedMs Almond's evidence that all money she received from Chris Readwas for costs (including rent) associated with her parents.37 She alsorejected Ms Almond's evidence that she alone paid the mortgage,finding that she did not have sufficient independent means.38 The Judgearrived at the figure of $91,061 after deducting the cost of a ride-onlawn mower and airfares for Ms Almond and her daughters to visitthe United States at Chris Read's invitation and cost.39(c) $33,034 in money paid by Chris Read to Mrs Read, on account ofmortgage payments, which were on-paid to Ms Almond.40[58] On that basis, the Judge awarded Mr Chris Read a 23.88 per cent share inthe Property.41Ms Almond[59] Finally, Ms Almond's share was explained as follows:34 At [182]–[183] and [189].35 At [188].36 At [214]–[215] and [251].37 At [211].38 At [202]–[204].39 At [212]–[214] and [251].40 At [209], [211] and [251].41 At [251].(a) $172,000 for the cost of construction of Ms Almond's home, includingher daughters' contribution of $60,000;42(b) $60,000 being the money borrowed by Ms Almond for the initialpurchase;43 and(c) $3,125 for Ms Almond's share of the cost of the driveway.44The Judge found that Ms Almond was entitled to a 30.24 per cent share in the Propertybut adjusted that downward to 24.74 per cent after deducting 5.5 per cent to reflectBruce Read's purchase of R's share in the Property.45[60] Thomas J arrived at those findings after an extensive review of the evidence.We observe that on multiple occasions, the Judge preferred the respondents' evidenceto that of Ms Almond.The law[61] Before considering the arguments raised on appeal, it is helpful to set outthe relevant law, particularly in relation to constructive trusts.[62] The starting point is that this dispute concerns an entitlement to an interest inland registered in the name of Ms Almond alone. Section 49A of the Property LawAct 1952 (which applied at the time) provides in material part:4649A Certain instruments to be in writing(1) No legal interest in land may be created or disposed of except bywriting signed by the person creating or conveying the same or by hisagent lawfully authorised in writing in that behalf, or by will, or byoperation of law.(2) A declaration of trust respecting any land or any interest in land shallbe manifested and proved by some writing signed by some person whois able to declare such trust or by his will.42 At [244] and [251].43 At [244] and [251].44 At [246] and [251].45 At [251].46 This provision is now contained in s 25 of the Property Law Act 2007.(3) A disposition of an equitable interest or trust subsisting at the time ofthe disposition shall be in writing signed by the person disposing of thesame or by his agent lawfully authorised in writing in that behalf, or bywill.(4) This section does not affect the creation or operation of resulting,implied, or constructive trusts.[63] In this case, the Judge found a constructive trust made out bringing the casewithin the scope of s 49A(4).[64] Constructive trusts can be divided between institutional constructive trusts andremedial constructive trusts. In Fortex Group Ltd (in rec and liq) v MacIntoshTipping J formulated the distinction in the following way:47An institutional constructive trust is one which arises by operation ofthe principles 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, no trustof any kind existed.The difference between the two types of constructive trust, institutional andremedial, is that an institutional constructive trust arises upon the happening ofthe events which bring it into being. Its existence is not dependent on any orderof the Court. Such order simply recognises that it came into being at the earliertime and provides for its implementation in whatever way is appropriate.A remedial constructive trust depends for its very existence on the order ofthe Court; such order being creative rather than simply confirmatory.[65] The learned authors of Equity and Trusts in New Zealand describe the morecommon examples of institutional constructive trusts, and note:48The common factor in all of these scenarios would appear to bethe unconscionability of the defendant in denying the plaintiff an equitableinterest in the relevant property because of a previous understanding, whethersubjectively agreed upon between the parties or more commonly deemed by thelaw to have been appropriate in the circumstances. It is the element of consentor intention (or lack of either of these, as the case may be) that triggers theinstitutional constructive trust which arises to reverse the defendant'sunconscionability.47 Fortex Group Ltd (in rec and liq) v MacIntosh [1998] 3 NZLR 171 (CA) at 171–172. See alsoWestdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669.48 Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Brookers NZ, Wellington, 2013)at [13.21].[66] One common category of constructive trusts is where contribution has beenmade to the acquisition, improvement or maintenance of property, or its value by aparty other than the registered proprietor.49[67] In Lankow v Rose, the essential requirements of that type of constructive trustwere described as follows:50 that the plaintiff contributed in more than a minor way to the acquisition,preservation, or enhancement of the defendant's assets, whether directly orindirectly; and that in all the circumstances the parties must be taken reasonablyto have expected that the plaintiff would share in them as a result.[68] Tipping J set out the elements a claimant needs to prove in order to establishthat equity should regard as unconscionable a defendant's denial of claimant'sinterest:51(a) contributions, direct or indirect to the property in question;(b) the expectation of an interest therein;(c) that such an expectation is a reasonable one; and(d) that the defendant should reasonably expect to yield the claim andinterest.[69] Where a contribution is made on the basis of a pre-existing common intentionthat the contribution will result in a proprietary interest, there will be no difficulty inestablishing a reasonable expectation. In Gormack v Scott, Cooke P added tothe principles by making the following observations:52First, where there has been an express common intention applicable tothe circumstances that have arisen, it is unnecessary to fall back on reasonableexpectations.49 Although we acknowledge this type of trust commonly arises within the context of relationships,there is no reason why it cannot extend beyond that if the central elements of the claim are madeout.50 Lankow v Rose, above n 17, at 282.51 At 294.52 Gormack v Scott, above n 17, at 47–48.Secondly, if (as the Judge thought here) the common intention was too vaguelyexpressed to receive implementation as such, the evidence bearing on commonintention may still be relevant in considering the reasonable expectation of theparties.Thirdly, in considering reasonable expectations, attention is not to be confinedto the inception of the relationship or the time when any property in questionwas purchased. The inquiry extends to the whole circumstances and history ofthe relationship[70] Finally, as Glazebrook J observed in Commonwealth Reserves I v Chodar,the purpose of a constructive trust is generally not to create an ongoing trustrelationship, but to force the disgorging of money or property by the constructivetrustee.53 In this way, "a constructive trust is a means to an end".54[71] It flows from the principles outlined in these cases that what is sometimesreferred to as a "common intention constructive trust" simply describes one type ofsituation in which a reasonable expectation will be found to exist.55[72] We now turn to address each of Ms Almond's arguments on appeal.Arguments on appeal[73] On appeal, Ms Almond continues to maintain that she and her parents agreedthat she would own all of the equity in the Property, and that her parents would ownthe subsidiary dwelling, in which they could live out their days which, on their death,could be sold for removal. However, in a significant departure from how her case wasadvanced in the High Court, Ms Almond abandons her claim to have paid all of thepurchase price of the Property, and to have made all of the mortgage payments. Sheaccepts that her parents made substantial contributions to each but on theunderstanding they would be looked after by Ms Almond, the genesis of the wholearrangement, not in return for a proprietary interest. She says she lived up to her partof the bargain by cooking them meals and cleaning for them, and that this arrangementshould be honoured by this Court. Mr Perese for Ms Almond submits that this case53 Commonwealth Reserves I v Chodar [2001] 2 NZLR 374 (HC) at 382.54 At 382.55 We note the concept of a "common intention" constructive trust was discussed in the recentdecision of Harvey v Beveridge however this Court declined to find such a trust existed onthe facts, preferring to leave to issue of constructive trusts arising by common intention foranother day. See Harvey v Beveridge [2014] NZCA 72, [2014] NZAR 677 at [46].was not, as the Judge found, about a close-knit family entering into a propertydevelopment together. Rather, it was about arrangements between a daughter and herelderly parents for their care. In these circumstances, the Judge erred in finding acommon intention to share ownership.[74] Ms Almond now argues that while her parents' contribution may have beenfunded in large part by her brothers, she was not party to those arrangements, and thosepayments cannot give Bruce and Chris Read an interest in land.[75] Because Ms Almond's appeal is advanced on such a different basis to how shedefended the respondents' claim, it has at times been difficult to follow her argument,especially since only part of it was captured in the written synopsis. In oral argument,Mr Perese submitted the following in respect of the payments of whichthe respondents' claim an equity interest:(a) Bruce Read: In respect of the $130,000 paid by Bruce Read, Mr Peresesays that Ms Almond's position in respect of this contribution is now asfollows. At best, this was a loan from Bruce Read to Mr Read.Ms Almond was not party to the arrangements for it, and sothe payment cannot give rise to an equity interest in the Property.The payments in respect of the garage and the purchase of [R's] interestin the Property were similar arrangements reached between Bruce andhis parents, and could have no effect on the basis of the ownership ofthe Property as agreed between Ms Almond and her parents. Mr Pereseargues the Judge's acceptance of Bruce Read's evidence as to the basison which the payments were made lacked adequate factual foundationbecause his evidence was not credible.(b) Mrs Read: Mr Perese confirms the following position for Ms Almondin respect of Mr and Mrs Read's contributions. Although Mr andMrs Read paid the deposit, that was largely refunded. It was not usedto purchase the Property. Ms Almond accepts however that Mrs Readis entitled to an interest of about $140,000 in the land, calculated asthe sum of the cost of construction of the subsidiary dwelling, andthe $3,125 for the driveway.(c) Chris Read: Ms Almond now contends that the $30,000 used inthe initial purchase was a loan to her parents, did not involve her andtherefore cannot result in an equity interest in the Property. She claimsthat the same is true of the mortgage repayments; these were simplygifts or loans Chris Read made to his parents because he did not wanthis parents paying the mortgage.[76] Mr Perese submits that the evidence before the Judge was such that she waswrong to find a common intention to share the equity. He argues the ownershiparrangements Ms Almond contends for are supported by contemporaneous documentswhich were not adequately addressed by the Judge: specifically, the lawyer's filenotes, a letter from Mr Read to support an application for resource consent and, finally,various wills made by Mrs Read. These documents, he says, contradictthe respondents' case. He also argues the Judge was wrong to accept the evidence ofBruce and Chris Read as the basis for her findings, when that evidence was obviouslyinconsistent and/or not credible. He invites us to take a different view of the evidence.[77] If this Court accepts that the Judge erred in her finding of common intention,then Mr Perese argues that it is necessary to consider whether the respondents canotherwise rely on a constructive trust as a remedy in circumstances concerning familycare arrangements. He contends that an institutional constructive trust (based onreasonable expectations as articulated in Lankow v Rose) does not apply to family carearrangements for elderly parents. And if it does, allowance needs to be made forthe care actually provided by Ms Almond.[78] Finally, Mr Perese argues that the Judge erred in finding a breach of fiduciaryduty because the evidence does not support a very serious finding, on account ofdishonesty, on Ms Almond's part.[79] The respondents say that Ms Almond cannot simply step away from the caseas run in the High Court. They say that this new submission that the initialcontributions of the individuals were gifts as part of a "care arrangement" for Mr andMrs Read is inconsistent with the evidence Ms Almond gave at trial, and her overallcase.First ground of appeal: the finding of common intention[80] Before we address these arguments under this ground of challenge we highlightfundamental difficulties with Ms Almond's appeal.[81] First, the appeal depends upon a version of events which was not covered inMs Almond's evidence and which, in some respects, conflicts with the evidence shegave. Secondly, Mr Perese asks us to conclude the Judge erred in her finding that therewas a common intention, based upon our reconsideration of isolated pieces ofevidence. But the Judge's conclusion on the key issue of the nature of the agreement,and who was party to it, was based on her review of all of the evidence and, mostimportantly, credibility findings made in respect of Ms Almond and the respondents.Mr Perese does not attempt to grapple with these two difficulties. We see them ascritical and return to them shortly.[82] For now, we review the evidence Mr Perese refers us to.The solicitor's file notes[83] Mr Bryan Scott was the conveyancing solicitor acting for Ms Almond. In hisevidence, Mr Scott said that Mr and Mrs Read came in to see him about "building asmall unit on land [Ms Almond] was purchasing". Overall, the oral evidence he gavetended to support Ms Almond's account that Ms Almond alone was buyingthe Property, and that all of the money used in the purchase, including the $130,000,was her money.[84] However, as the Judge found, the file notes Mr Scott made at the time do notsit well with his evidence at the hearing.56 Two file notes use language which suggestsmultiple purchasers. Mr Scott's file note of a conversation with Mr Read onthe 31 May 2002 contained the following preamble:56 High Court judgment, above n 2, at [70]–[75].Fred and [Mrs Read] had initially been in to see me to discuss proposals forbuying a property in conjunction with their daughter so that they could havetwo houses on that property.[85] The file note of a telephone conversation with Ms Almond taken the day beforealso records Ms Almond as saying "they initially wanted to buy Lot 4 and were keenon it but they are now very happy with Lot 5". And further "She also mentionedmoney from Shares and I would think that these were her brother's Shares".[86] In his evidence-in-chief, Mr Scott attempted to add a gloss to that note.He said:My understanding was that these were in fact [Ms Almond's] investment held byBruce and she was getting some money back from an investment which had beenmade through her father.He claimed he understood that it was Ms Almond's money coming back to her.Mr Scott's recollection on this point was challenged on cross-examination. It was putto him that given the passage of time and his involvement in multiple otherconveyancing transactions, he would have no recollection independent to the contentof the file notes. He denied that was so.[87] Mr Scott also made a further note to himself to discuss the possibility of aproperty sharing agreement or licence to occupy with Mr and Mrs Read. In evidence,Mr Scott said of this discussion:Fred was a very decisive man and from what little I knew of him I wouldthink that he would have declined this advice as it would have been moreexpense for them and he would have considered it unnecessary. This was thecase. I was not instructed to formally document the arrangement. When Iraised the matter with Fred, he told me that they didn't need any sort ofagreement. That it was [Ms Almond's] property and they could trust her andwhen they both had gone the house had to go.[88] Thomas J placed weight upon these file notes, preferring the account recordedthere to Mr Scott's oral evidence.57 She noted that Mr Scott had acted on manytransactions since this 2002 purchase, and some 13 years had elapsed since then.58She also noted that, since the dispute about ownership had arisen, Ms Almond had57 At [75].58 At [73].spoken to Mr Scott in connection with these events.59 The Judge concluded thatMs Almond had essentially given her side of the story to Mr Scott and that this maywell have influenced his recollection.60 We agree with the Judge that, after all thistime and in the context of this litigation, the most reliable guide to the content ofMr Scott's instructions from Ms Almond and Mr Read is the file notes.[89] The Judge concluded that overall Mr Scott's evidence and file notes supportedthe conclusion that:61(a) Mr Read was in good health at the time of the purchase of the Propertyin 2002;62(b) the shares were Bruce Read's shares;(c) Ms Almond was buying the Property with Mr and Mrs Read; and(d) the big house on the Property would belong to Ms Almond.[90] Nevertheless, Mr Perese claims that the files notes do support Ms Almond'snew version of events advanced on appeal. He relies on the absence of any mentionin those file notes of Bruce and Chris Read's contribution to the purchase or that theywere to have an equity interest. He submits that given the assurances Mr Read hadgiven his sons that they would have an equity interest, this omission is significant.He argues that if this assurance had been given, it would surely have beencommunicated to Mr Scott by Mr Read.[91] We do not accept that these file notes provide significant support for either ofMs Almond's versions of the agreed basis for the purchase. The evidence of bothBruce and Chris Read was that their father told them they could not be on the title.In Bruce's case, he knew it was because Ms Almond was borrowing money againstthe Property, and so needed to be the sole registered proprietor. There was therefore59 At [74].60 At [74].61 At [76].62 There is a note in the file note of 31 May 2002 that this was Mr Read's assessment of his ownhealth.good reason, within the logic of the transaction and in the particular context of thisfamily, for Bruce and Chris Read not to be recorded on the title.63[92] Mr Scott's evidence was to the effect that Mr Read decided not to formallydocument the family arrangement, so there clearly was an undocumented familyarrangement.64 It is true that the file notes suggest that Mr Scott was not told ofthe detail of the arrangement. But since Mr Scott was not asked to document it, therewas no reason to give him detail of that arrangement. There is also the corroboratingdetail in the file note of 30 May 2002 recording that money from the sale of"her brother's shares" was being used in the purchase. In the High Court, Ms Almondsaid this was her money. On appeal she argues, in conflict with her own evidence inthe High Court and in conflict with the context of this file note, that whateverthe arrangement was regarding that money, it was between Bruce and her parents andshe had no part in it.[93] In fairness to Mr Perese, he accepts the file note evidence is not in and of itselfa "silver bullet" for Ms Almond's cause. But he says it nevertheless is evidence thatcan be added to other pieces of evidence, casting doubt on the validity ofthe respondents' claim of a common intention as to equity sharing.Mr and Mrs Reads' letter to the Franklin District Council[94] Mr Perese places more weight upon the next piece of evidence; Mr Read'sletter to the Council. He says it was written at a time when there was no disputebetween the parties and so was entitled to significant weight.[95] Relevantly, the letter stated:6563 Chris Read's evidence was that he initially thought the land would be registered in the names ofhis parents, Bruce Read and Ms Almond only. He understood his name would not be registeredon the title because he was resident in the United States and having his name on the title wouldcause hassle for his parents and expose them to creditor claims. His evidence was he found outthe property was registered in Ms Almond's name only in 2005. Mr Read then explained that thiswas for the purpose of obtaining finance.64 Mr Scott gave evidence that there clearly was an undocumented family arrangement betweenMs Almond and her parents, but also gave evidence that he was not aware of any other purchasers.Had he known this "there is no way I would have allowed the transaction to proceed withoutformally documenting the arrangement".65 At [78].The land was purchased by myself & daughter so that a main house could bebuilt for her. This now exists and my daughter, Mrs Jan Almond and familyare living in it. Also a second small retirement home for myself & my wife(I am 82 and my wife is 78). My son who is single, will probably be retiredwhen we have finished with the home and the plan is for him to occupythe house and he and my daughter can look after each other (my daughter'shusband and the children's' father died several years ago so help is needed inboth cases). The retirement home, when we have finished with it, could be turned into agranny flat if required (or so a young lady from your planning dept told usabout nine months ago when this plan was first thought of).Mr Read went on in the letter to seek consent for the installation of a full concretefloor and brick cladding.[96] Mr Perese argues first, the letter corroborates the version of an agreement as toownership of the Property as set out in Mr Scott's file notes; that the Property wasbeing jointly purchased by Mr and Mrs Read and Ms Almond, so that a main housecould be built for Ms Almond and a retirement home for Mr and Mrs Read becauseMr Read considered himself in need of care. He submits that the Judge failed toreconcile the differences between the plan described in Mr and Mrs Reads' letter tothe Council with the family arrangement the respondents contend for. He arguesthe letter is also evidence that the Property was bought to ensure care for the parents,and not as an investment for the family; Bruce Read is only mentioned as living inthe parents' house and there is no mention of Chris Read's interest at all.[97] Of this letter, the Judge said:(a) it contradicts Ms Almond's evidence that she always had antipathy toBruce Read, and undermines her assertions that a condition ofthe arrangement was that he was never to live on the Property;66(b) it supports Mrs Reads' evidence that it was never intended that herhouse would in fact be moved from the Property once Mr and Mrs Readceased to live in it;67 and66 At [79].67 At [80].(c) it records that the Property was purchased by Ms Almond and Mr andMrs Read.68[98] We agree with the Judge's assessment of the significance of this evidence.Again, we do not attach weight to the absence of mention of a broader familyarrangement. This was a letter to the Council to assist in obtaining a consent for asecond dwelling, not a formal record of ownership arrangements. The letter writer'sfocus is upon the use to which the dwelling would be put, and for that reasonemphasised its secondary nature, thereby addressing any concerns that it was a de factosubdivision as prohibited under the Franklin District Council Scheme. We do notconsider that this letter, even if added to the solicitor's file notes, suggests an error inthe Judge's assessment of the evidence in finding common intention, or otherwisesupports the appellant's case.[99] We further note that this evidence is not helpful to Ms Almond as it shows aclear intention that the arrangement benefit her, in the same way she claims it wasintended to benefit her parents. This is not addressed by Mr Perese but weakensMs Almond's claim that the genesis of the arrangement was that she provide care andsupport to her parents as they aged.Mrs Read's will of 9 June 2010[100] The third piece of evidence Mr Perese relies upon is Mrs Read's Last Will andTestament dated 9 June 2010, which provides:If at the date of my death if I still own the house that my late husband and Ibuilt on our daughter's property at [Drury] then I DIRECT that ownership ofthe house (not land) is to be vested in my daughter JAN as to a one half shareand to my sons BRUCE and CHRISTOPHER as to a one quarter share each.At any time that my daughter JAN sells the above property then the value ofmy house is to be as agreed between my daughter and two sons but ifagreement cannot be reached then as determined by a registered valuer.The proceeds of any sale of the house can then be paid to my daughter andsons in the above shares.68 At [81].[101] Mr Perese submits that this testamentary disposition is entitled to great weight,because it was completed before the present dispute. He submits it supports the viewthat Mrs Read understood that:(a) Ms Almond owned the Property;(b) her only claim was to the house and not the land; and(c) if Ms Almond sold the Property, then the value of the house was to bedistributed between Ms Almond, as to a half share, and to each of hersons, as to a quarter share.[102] Thomas J said she had considered the various changes Mrs Read made to herwills but concluded there was no need to make further reference to them, recordingthat Mrs Read's wills had been relied upon by the parties at various times to showthe extent of the other party's influence on Mrs Read.69[103] We have reviewed the evidence in connection with these wills. The will reliedupon by Ms Almond is one of many made by Mrs Read. Somewhat unusually forcases concerning the effect of testamentary dispositions, Mrs Read was able to giveevidence as to the circumstances in which she made this will. Mrs Read's evidencewas that she did not understand the significance of the part of the will that related todisposition of the house (and the machinery for that) following her death. Mr Scottattended on Mrs Read for the preparation of her will. Even though Mr Scott said hedid explain the contents of the will to her, there is no evidence as to the nature of thatexplanation.[104] On the face of it, the particular clause relied upon by Ms Almond is consistentwith the arrangement Ms Almond now says was in place. Even so, we are not preparedto place any weight upon it. This will was executed shortly after Mr Read's death.In a later will, the provision relied upon was removed. Mrs Read's will reverted to thestyle employed in previous wills for both Mr and Mrs Read — directing thedistribution of testamentary property without any particular arrangements in respect69 At [174].of the distribution of the proceeds of the secondary dwelling. Moreover, just asthe will relied upon by Ms Almond might be thought to support her case, so mightthe other wills be thought to support the respondents. Given the family dynamic,we think it unsafe to rely upon the content of a revoked testamentary disposition aspost-agreement conduct consistent with either side's case. In that, we take the sameapproach as the Judge.[105] We therefore conclude that the three strands of evidence relied upon byMr Perese do not support Ms Almond's case that the Judge erred in finding acommon intention that equity would be shared proportionate to contributions betweenMs Almond, Mr Read and the respondents.Was there sufficient credible evidence to justify a finding of common intention?[106] There are several parts to this argument. The first attacks the key plank ofthe Judge's finding of a common intention — that there was a trusting relationshipbetween family members, such that they were prepared to invest significant amountsof money "on trust". Mr Perese refers to the following passage in the judgment:[231] I cannot agree with Ms Law's submission that the reasonableexpectation of the parties (that the plaintiffs would share in the Property) failsbecause of lack of documentation. I accept the plaintiffs' evidence that theydid not think formal documents were necessary because they thought ofthemselves as part of a family who trusted one another. [107] Mr Perese submits that on the evidence before the Judge, such a finding wasnot open to her. Mr Perese points to Chris Read's evidence that he would not haveinvested were it not for his father's involvement, which he argues suggests a lack oftrust when it came to his sister. He also points to an affidavit Chris Read filed inanother proceeding in which he said that although his sister could appear kind andgenerous "she is also very volatile, manipulative, dominating, gets extremely jealous,very dishonest, intolerant, vindictive, has absolutely no problem in lying to suit herpurpose, and threatening". This is clear evidence, Mr Perese submits, of acrimony,not trust, within the family. He therefore asks us to revisit the Judge's finding that thiswas a family sufficiently functional to agree an arrangement involving large sums ofmoney on trust.[108] We have reviewed this evidence and are satisfied that the Judge's finding thatthere was a trusting relationship in the family, providing necessary context tothe agreement, was open to her. Chris Read was candid in his evidence that he hadreservations about his sister's reliability. But he said he was prepared to go ahead withthe transaction because of his father's involvement. We see no inconsistency betweenChris Read's reliance upon his father's involvement in agreeing to invest, and theJudge's finding that this was a trusting family. The family, with Mr Read alive andwell, did indeed trust each other. It is clear from the evidence that Mr Read was criticalto the functioning of the family and that was how all saw him.[109] The Judge was aware that family relations had broken down. However, shewas satisfied that occurred well after the property investment. She had a goodevidential basis for that, including Bruce Read's preparedness to spend $130,000 onthe Property, the shared plans that he would one day live there, and the fact he did liveon the Property for some time before relationships broke down. As to the affidavitaffirmed by Chris Read in other proceedings, it was affirmed after relations betweenthe family had entirely broken down and is not relevant to assessing the context forthe formation of the common intention.70[110] Mr Perese argues the Judge erred in her finding that the brothers invested onthe basis of an agreement they were to receive a proprietary interest in return for theircontributions. He submits that Bruce Read's evidence that had put up the $130,000 inreturn for a proportionate share in the Property is improbable for the following reasons:(a) There is no reference to that arrangement in the contemporaneousdocuments.(b) In Mrs Read's will made after her relationship with Ms Almond hadbroken down (when she was in the rehabilitation centre), Mrs Readexplains her failure to make any provision for her daughter in her willas follows:because of the failure of my said daughter to recognise or toaccount for the contributions made towards such property70 The affidavit of Chris Read was affirmed on 28 April 2013.directly or indirectly by my late husband FREDERICKJAMES READ and/or by me (c) He gave evidence regarding the record of contributions in thenotebook which were implausible.[111] We are not persuaded that much weight is to be attached to the absence ofcontemporaneous documentation. The arrangement involved large sums of moneyand so formal documentation would have been advisable. But the arrangements werebetween family, and so the failure to take this prudent step is not surprising.The parties all agree that a contemporaneous record of contributions was kept byMr Read, however this notebook has since disappeared or been destroyed.71[112] As to the clause in Mrs Read's will, it does refer only to contributions made tothe Property by Mr and Mrs Read, a fact Mr Perese submits is inconsistent with anotion that contributions were made directly to the Property by Bruce and Chris Read.We do not agree that this passage in the will supports the argument Mr Perese makes.Mrs Read explains why she makes no provision for Ms Almond, linking that to herand her husband's financial contributions. The contributions that her sons made aresimply not relevant to the issue she addresses.[113] Finally, we come to the criticism that Mr Perese makes of Bruce Read'sevidence in connection with the record his father made of contributions. Mr Peresesubmits that Bruce Read's evidence was that his father noted down the $130,000contribution in the book on or about 19 May 2002, and this cannot be correct as hehad not paid that amount by then. Some of the other details also cannot be correct,such as receipts from the sale from his parents' property, as that was received a yearlater. Accordingly, Mr Perese contends that it would not have been possible for BruceRead to see what he says he saw on 19 May 2002.[114] In cross-examination Bruce Read said that the particulars of contributions werewritten down by Mr Read as follows:71 While all parties agree a notebook was kept, the parties differ in the form of the notebook.Ms Almond agrees her father kept a notebook but says that the record of her contributions waskept in a different notebook to contributions of the respondents to the Property.When we bought the property my father wrote down cost of property 190,000.Underneath that Fred and Ethne paid $30,000, $10,000 deposit, $10,000 loan,$10,000 after they sold their house with full agreement from the defendants.Then Chris Read $25,000 from the bach plus $5,000 to make it up to the 30,that's two 30s. Underneath that $130,000 contributed by Bruce and theappropriate date.[115] Although this is one of the passages of evidence relied upon, Bruce Read doesnot assert that all of the details were entered on or around 19 May 2002.We understand Mr Perese seeks to build his argument by linking this passage toBruce Read's acceptance of a proposition later put to him that details were entered on19 May 2002:Q So you would agree with me that if the sale and purchase agreementwas entered into on or about 19 May 2002 that that's about the timethat he recorded this agreement that you allege?A Mhm, yeah.[116] This single exchange, ambiguous as it is, cannot be read in isolation from thatother evidence we refer to. For example, Bruce Read had earlier stated that his fatherwrote down his $130,000 contribution when he handed him the cheque, and that datewas in July. We see nothing in Mr Perese's argument on this point.[117] Mr Perese also argues that Bruce Read's evidence on purchasing [R's] sharewas inconsistent and should have been rejected. That was because in evidenceBruce Read claimed to have paid out [R's] share in the Property. But his lawyer hadearlier written to Ms Almond seeking to recover this as a loan. When challenged incross-examination, Bruce Read maintained that the payment of $50,000 was alwaysmade on the understanding that he was purchasing [R's] share. However he was lateradvised that framing that payment as a loan was the best way to proceed to recoversome of the outlay.[118] The Judge addressed these issues in her judgment, preferring Bruce Read'soral evidence to that of Ms Almond's version of events — that the $50,000 wasthe balance of payment by Bruce Read of investments he was handling for her.We agree with the Judge's assessment of the evidence. Ms Almond accepted she heldpart of her interest in the Property on constructive trust for her daughters. There wasevidence that [R] did want to buy her own home and that a substantial amount ofthe $50,000 was paid to her by Ms Almond. Moreover Chris Read gave evidence thatMr Read and Ms Almond had asked him if he wanted to buy [R's] share for $50,000,and that Ms Almond later confirmed Bruce had taken over that share. While we acceptthe solicitor's letter is inconsistent with Bruce Read's account, it is also inconsistentwith Ms Almond's case (at least as it was put in the High Court). Bruce Read'sexplanation as to how a demand for repayment of a loan came to be is plausible. We donot see the letter as undermining Bruce Read's credibility, nor the Judge's findings.Chris Read's payments towards the mortgage[119] Mr Perese submits that a critical inquiry the Judge failed to adequately addresswas why Chris Read paid the mortgage — whether it was, as he said in his brief ofevidence, that he only paid the money on the condition that those payments would beconsidered part of his contribution to the Property, or whether the payments were madebecause of the moral duty he felt to his parents.[120] Mr Perese relies upon the following evidence in support of the latter:(a) Chris Read said in cross-examination that he only paid the mortgagebecause he was told by his parents that Ms Almond had a mortgage shecould not pay — he volunteered to pay it because if he did not do that,then his parents would have had to pay.(b) The mortgage payments commenced on 24 July 2003, almost one yearafter the Property was purchased.(c) Chris Read approved $1,000 per month for the payment of the principaland interest on the mortgage, more than what was required underthe loan agreement at the time.(d) The agreement that Chris Read pay the mortgage was between him andhis father, and only later "confirmed" with Ms Almond.(e) He wanted to help his parents out financially because he was not thereto help them out day to day.[121] Mr Perese submits that the overall tenor of Chris Read's evidence was thereforethat he was acting on a moral duty to help his parents out. If that view of the evidenceis preferred, that he paid the mortgage and interest to help his parents, thenthe arrangement Chris Read described does not make sense. Mr Perese argues thatthese two propositions are irreconcilable — the proposition that he paid the money tohelp his parents is irreconcilable with the proposition that he paid the money inthe expectation of receiving a proportionate share of the Property.[122] We do not see these propositions as irreconcilable. By paying the money asrequested by his father, Chris Read enabled his parents to live on the Property. But henevertheless paid the money in the expectation that ultimately, when the value of theProperty was distributed at some future point in time, he would receive a proportionateshare. The Judge accepted his evidence to this effect, preferring it to the evidence ofMs Almond.72[123] Finally, Mr Perese submits that there was an inconsistency in Chris Read'sevidence which undermined its reliability. His evidence, Mr Perese contends, was thatthe land was purchased with the use of his $30,000 (being $25,000 credit and a further$5,000), $30,000 from his parents and $130,000 from Bruce Read. However in realitythe purchase of the land was funded by the $130,000 from Bruce Read and the $60,000loan raised by Ms Almond.[124] Again we see no inconsistency in this evidence. Chris Read's evidence wasthat it had been agreed that the $30,000 would be used in the purchase of the Property,and that agreement included Ms Almond. The fact Ms Almond did not use the moneyfor the purchase does not bear upon Chris Read's credibility, which is Mr Perese'sfundamental submission.Other difficulties with this ground of appeal[125] The fundamental issue for us is, did the Judge err in her factual finding thatthere was a common intention to equity share in proportion to contribution?72 At [215].Ms Almond's attack on that finding does not succeed on its own terms. But in anycase it faces additional difficulties.Differing narrative[126] First, Ms Almond puts her case on a basis which differs to the case presentedin the High Court and is, as a consequence, unsupported in critical aspects bythe evidence. For example, Ms Almond gave evidence in the High Court thatthe $130,000 from Bruce was simply the cashed-up investment he had been managingfor her for 30 years. The Judge made a credibility finding against her on that. NowMs Almond argues that even if it is accepted that payment was Bruce's money, it waspaid into the Property on the basis of an agreement struck between Ms Almond andher parents that they would pay most of the purchase price in return for her caring forthem. But that is inconsistent with her evidence in the High Court.[127] The same is true of the $10,000 deposit, which she claimed her parents gaveher as repayment of her loan to them. And also true of the $30,000 paid by Chris Readfor the purchase of the Property and construction of the dwellings. Ms Almondclaimed $25,000 was a gift from Chris in recognition of all she did for him; the Judgerejected that evidence.73 Now Ms Almond claims the payment of $30,000($25,000 plus later payment of $5000) was a loan by Chris Read to her parents, usedby them on the Property pursuant to caregiving arrangement to which Chris was not aparty. But that was not her evidence before the High Court. We do not propose to gothrough each and every recasting of the case by Ms Almond. These examples, wethink, are sufficient to make our point.Ms Almond's credibility[128] The other difficulty Mr Perese's submissions do not address is the extent ofthe adverse credibility findings against Ms Almond. The Judge's findings did not turnupon her assessment of the isolated pieces of evidence put forward by Ms Almond'strial counsel. Rather, they turned upon her overall assessment of the evidence givenby Ms Almond and the respondents. Ms Almond built her case upon a narrative that73 At [187].she paid the entirety of the purchase price and made all the mortgage payments; thather parents were prepared to build at their own expense on her land and pay rent sothat she could be their caregiver; that they were old and frail and needed care; that shehad a very dysfunctional relationship with her brother Bruce; and that she would neveragree to live on the same land as Bruce, let alone enter into a property sharingarrangement with him.[129] The Judge rejected each of these strands of Ms Almond's case and on severaloccasions, found Ms Almond's evidence was not credible. And indeed it was not.For example, she claimed to have invested $60,000 with Bruce Read in 1974 onthe sale of a house when she was in her early twenties. But on her own account shehad a very poor relationship with him. And, in 1974 that was an improbably largeamount of money for a woman in her early twenties to have available for investment,even accepting that Ms Almond was hard working. Even more improbable is that shewould have left that investment untouched as she went through the various hardshipsshe recounts in her evidence. The Judge, with full knowledge of Ms Almond'sfinances and the circumstances of her case, rejected the notion that Ms Almond hadthe means to pay the full purchase price and service the mortgage.74[130] The Judge found that Mr and Mrs Read were able to look after themselves atthe time of the arrangement and that while being close to their daughter as they agedwas part of the rationale of the agreement, they were primarily driven by a desire tosupport Ms Almond and her children. The Judge's finding as to Mr Read's health hadgood factual foundation. Not just the evidence of the respondents but also Mr Read'sown assessment as reported to Mr Scott.[131] The Judge also rejected Ms Almond's account of a poor relationship withBruce, at least prior to issues arising within the family as to Ms Almond's use ofMrs Read's money. Again the Judge had a proper evidential basis for that.The evidence of the respondents was supported by Mr Read's reference in the letter tothe Council that one day his son and daughter might live together on the Property tolook after each other. There was also the evidence of the extent of money Bruce was74 At [67].prepared to pay into a property which was to be registered in the name of Ms Almond.If relations were so poor within the family, it is most unlikely Bruce would have beenprepared to provide $130,000 for the purchase of land to be in the name of Ms Almondalone, however that funding was structured. There is also the evidence of the numberof years that Bruce Read lived on the Property before Ms Almond took any steps tohave him removed from that land.[132] We are therefore satisfied that the Judge was correct in her assessment ofthe evidence.[133] To conclude:(a) Ms Almond's appeal is based on a version of events which differs fromthat pleaded and argued in the High Court, and which is not supportedby the evidence she gave in the High Court.(b) In her judgment, Thomas J made a number of critical credibility andfactual findings. Those findings were linked to both oral evidence andcontemporaneous documents. Having reviewed the evidence,including the evidence Mr Perese has invited us to address, we are notsatisfied that she erred in those findings. We have reached the sameview, on the basis of our own consideration of the evidence.(c) We see no error in the Judge's finding that there was an express familyarrangement to which Ms Almond was party, that each of the appellantand respondents would have an interest in the Property in proportion totheir contributions to it.[134] In accordance with the principles set out at [62] to [69] above, we agree withthe Judge that an institutional constructive trust arises on the facts, and Ms Almondmust yield the Property pursuant to the parties express common intention. This groundof appeal therefore fails.Second ground of appeal: constructive trusts[135] Mr Perese's additional ground of appeal, as articulated in his writtensubmissions, only arises if we are satisfied that the Judge erred in finding thecommon intention the respondents allege. In other words, should we be satisfied thatthe Judge erred in finding a common intention between the parties that they wouldreceive a proprietary interest in the Property, then it is necessary to go on to considerwhether the respondents can nevertheless rely on a constructive trust based onreasonable expectations as a remedy, invoking the principles set out in Lankow vRose.75 Mr Perese submits that if the arrangement was, as he characterises it, one forthe care for elderly parents, an institutional constructive trust does not do justicebetween the parties because it makes no allowance for the care already provided.[136] Given our factual findings, we do not attempt consideration of this alternativeargument. In the absence of factual findings as to the exact nature of this alternative"family care arrangement", such an analysis cannot be sensibly attempted.[137] We also note that in the notice of appeal, issue is taken with the Judge'simposition of a constructive trust on the grounds that the respondents' expectationswere not reasonable. In oral submissions Mr Perese seems to accept that argument iscontingent upon his persuading us the Judge's findings of common intention were inerror. We are, in any case, satisfied that the money having been contributed onthe basis found by the Judge, pursuant to an agreement to share equity in proportionto contributions, it is unnecessary to consider reasonable expectations.76Third ground of appeal: breach of fiduciary duty[138] Mr Perese submits that the claim against Ms Almond entailed an allegation thatshe stole from her mother during the course of her role as Mrs Read's attorney, and itturned on findings of credibility.75 Lankow v Rose, above n 17.76 Gormack v Scott, above n 17, at 47–48.[139] The Judge did not believe that so much money could be spent by Ms Almondon Mrs Read's behalf.77 But Mr Perese argues that the evidence did not support a veryserious finding of breach of fiduciary duty, on account of dishonesty. He furthercontends that there is evidence proving that Mrs Read paid amounts to Ms Almondgoing back to 2002 and that the amounts paid did not vary greatly after the power ofattorney was granted.[140] Mr Woods for Mrs Read submitted that there was no finding of dishonesty andthat the cause of action turned upon a failure to account.Analysis[141] The cause of action pleaded against Ms Almond did, we consider, contain anallegation that Ms Almond used Mrs Read's funds for her own benefit and that shethereby misused the authority conferred upon her by the power of attorney.[142] The Judge formulated the issue for herself as to whether Ms Almond breachedher fiduciary duties of loyalty and not to profit at the expense of Mrs Read.78She found that Ms Almond breached the duties not to profit and to be open and fair.79We accept that this entailed a finding of dishonesty as well as breach of statutory dutybecause it entailed a finding that Ms Almond was using her mother's money, withoutauthority, for her own purposes.[143] As Mr Perese submits, the Judge had to have a proper factual foundation forthese findings. But we consider that she did.[144] In reaching the conclusion that there were unauthorised payments, the Judgetook into account the following matters:(a) Two days after the power of attorney was granted, $1,000 wastransferred from Mrs Read's account to Ms Almond's account,followed by regular payments of $1,300, $600 and $1,000.80 In total77 High Court judgment, above n 2, at [274].78 At [268].79 At [273].80 At [271].$40,076 went into Ms Almond's account throughout the period of20 months using internet banking.(b) The fact that two days after the power of attorney was granted, such alarge amount was transferred from Mrs Read's account to Ms Almond'saccount followed by other large payments, raises the irresistibleinference that Ms Almond was abusing the power of attorney.81However the Judge accepted that authorised outgoings in relation toutilities and food needed to be deducted.(c) The payments out of the account were for rounded sums, yetMs Almond maintained they were simply repayments to her ofexpenses incurred on her mother's account.82(d) During the 20-month period of the power of attorney, approximately$2,000 per month was transferred from Mrs Read's account toMs Almond's.83 Based on Ms Almond's own notes of the likelyexpenditures, the Judge was satisfied that a reasonable allowance forutilities and food was $545, net of the mortgage. This left anunauthorised total payment of $29,176.[145] As to the payments prior to the execution of the power of attorney, that doesnot logically tend to prove that the payments made under the power of attorney werefor a proper purpose and were authorised, at least, not without proof that those earlierpayments were all reimbursed or payment of legitimate expenses. There was no suchproof.[146] Accordingly, this ground of appeal must also fail.81 At [273].82 At [271].83 At [274].Costs[147] The respondents have been successful in this appeal. Ordinarily, we wouldmake a costs order against Ms Almond in favour of the respondents for a standardappeal on a band B basis and usual disbursements. However, Ms Almond is alegally aided person.[148] Section 45 of the Legal Services Act 2011 relevantly provides:45 Liability of aided person for costs(1) If an aided person receives legal aid for civil proceedings, that person'sliability under an order for costs made against him or her with respect tothe proceedings must not exceed an amount (if any) that is reasonable forthe aided person to pay having regard to all the circumstances, includingthe means of all the parties and their conduct in connection with the dispute.(2) No order for costs may be made against an aided person in a civil proceedingunless the court is satisfied that there are exceptional circumstances.(3) In determining whether there are exceptional circumstances undersubsection (2), the court may take account of, but is not limited to,the following conduct by the aided person:(d) any unreasonable pursuit of 1 or more issues on which the aided personfails:(e) any unreasonable refusal to negotiate a settlement or participate inalternative dispute resolution:(4) Any order for costs made against the aided person must specify the amountthat the person would have been ordered to pay if this section had notaffected that person's liability.[149] The starting point is therefore that Ms Almond, as a legally-aided person, hasgeneral immunity from an award of costs against her unless this Court is satisfied that"exceptional circumstances" justify an order for costs, and she has the means to meetsuch an order.[150] The respondents submit that Ms Almond's pursuit of this appeal was sounreasonable that the threshold of exceptional circumstances is met. They say that thegrounds raised in Ms Almond's notice of appeal attacked both the credibility andevidential findings of the Judge in a wide-ranging and comprehensive manner, andthat Ms Almond pursued her appeal on a different version of event from thoseadvanced at trial. This conduct, they say, constitutes an unreasonable pursuit of issueson which Ms Almond ultimately fails.84 Further to this, Ms Almond refused to engagein settlement negotiations, despite an open offer being received in writing prior totrial.85 Together, the respondents submit, these factors justify a finding of"exceptional circumstances" under s 45(2).[151] Mr Perese opposed the award of costs against his client. He pointed out she islegally-aided. As to the argument she behaved unreasonably in pursuing the appeal,he submitted that the respondents had behaved unreasonably in opposingMs Almond's earlier application for an extension of time to appeal. Mr Perese iscorrect that the respondents opposed the extension of time and Ms Almond had topursue the issue to the Supreme Court, where she was successful.86 However,Ms Almond received costs on that application.87 We do not see that as relevant to thisissue.[152] We are satisfied that Ms Almond did unreasonably pursue her appeal.Her arguments on appeal depend upon a case that conflicts with her own evidencegiven at trial. While there is little evidence before this Court in relation to the offer ofsettlement, we consider that Ms Almond's unreasonable pursuit of issues on appeal issufficient alone to establish "exceptional circumstances" under s 45(2).[153] But does Ms Almond have means to meet an order of costs?The respondents' success on appeal means that the High Court order for the sale ofthe Property remains in force. The respondents submit that any costs award orderedin their favour pursuant to s 45 can be met by Ms Almond's share of the ultimate saleproceeds of the Property. It seems to us that is right. Accordingly, taking into accountthe means of the parties and the exceptional circumstances of the case, it is appropriatefor Ms Almond to pay the respondents one set of costs for a standard appeal on aband B basis. Disbursements not being sought, we make no order for disbursements.84 Legal Services Act 2011, s 45(3)(d).85 Section 45(3)(e).86 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.87 At [45].Result[154] The appeal is dismissed.[155] The appellant must pay the respondents one set of costs for a standard appealon a band B basis.Solicitors:Law & Associates, Auckland for AppellantInder Lynch, Papakura for First RespondentRice Craig, Auckland for Second and Third Respondents