PATEL v PATEL [2023] NZCA 630

PATEL v PATEL [2023] NZCA 630 [8 December 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA64/2023[2023] NZCA 630BETWEEN JAYSHREE RATILAL PATELAppellantAND HEMANTKUMAR RATILAL PATELRespondentAND HEMANTKUMAR RATILAL PATEL, ASEXECUTOR OF THE ESTATES OFRATILAL PARBHU PATEL AND SHANTAPATELSecond RespondentAND RITA PATELThird RespondentAND KRISAJ PROPERTIES LIMITEDFourth RespondentHearing: 29 August 2023Court: Courtney, Whata and Downs JJCounsel: Appellant in personK B Arthur for first, third and fourth respondentNo appearance for second respondentJudgment: 8 December 2023 at 10.30 amJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The appeal is dismissed.C The appellant must pay costs to the respondents for a standard appeal ona band A basis, with usual disbursements.REASONS OF THE COURT(Given by Whata J)[1] Jayshree Patel (Jayshree) appeals the decision of Harland J dismissing herclaim against her brother, Hemant and his wife, Rita, for 50 per cent of the value ofvarious properties held by them or their company, Krisaj Properties Limited (Krisaj).1The nub of her claim is that these properties are held subject to a constructive trustbecause they were acquired using their deceased parents' wealth. Jayshree claims theJudge erred in multiple ways, but in short, Jayshree argues that the Judge erred infinding that the transfer of the family home to Hemant and Rita in 2004 was lawfuland that the financial contributions made by her parents to Hemant and Rita have beenproperly accounted for.Leave to adduce further evidence[2] Before turning to the substantive appeal, it is necessary to address theapplication by Jayshree for leave to adduce further affidavit evidence:(a) A copy of a typical agreement for transfer — this is said to be relevantto the assessment of the lawfulness of the transfer of the family home.(b) Testimonials as to Jayshree's employment with the Social Welfaredepartment — this is said to go to the assessment of likely level ofcontributions by Ratilal and Shanta in the form of social welfarebenefits.[3] This evidence is neither fresh nor cogent. It could have with reasonablediligence been adduced at the trial. Moreover, it adds nothing to the claims made byJayshree. The application for leave is therefore declined.[4] Leave was also sought to adduce a video clip of the hearing purporting to showHemant signalling to Rita during the giving of her evidence. The video was takenwithout either knowledge of the respondents or the permission of the Court. This is a1 Patel v Patel [2022] NZHC 3567 [judgment under appeal].clear breach of the rules of the Court. Quite apart from the fact the video has noprobative value whatsoever, the recording should never have occurred. Given this wesimply directed that the video be deleted.Background[5] The focal point of Jayshree's claim relates to the properties obtained byHemant and Rita over a 30-year span. It is helpful therefore to commence with anaccount of those properties.The family homes[6] Ratilal and Shanta Patel moved to New Zealand in the late 1970s with theirfour children Hemant, Jayshree, Atul and Ajay. In March 1979, Ratilal and Shantabought a family home in Carlie Street, Papatoetoe, using two loans with the NationalBank and the Housing Corporation. Jayshree moved out of the family home in 1987.[7] In 1991, the family home at Carlie Street was transferred as part of a deal toacquire a property at Oakdale Road, Hillsborough. That property was purchased at acost of $245,000, with $140,000 being the value of the Carlie Street property.The balance was financed via a loan with the Westpac Bank. Ratilal, Shanta, Hemant,and Atul were recorded as the registered proprietors of the Oakdale Road property astenants in common. Jayshree also returned to live in this family home with her son in1997 where she stayed until 2002.[8] In around March or April 2004, Ratilal, Shanta, Hemant and Rita sought torefinance the Oakdale Road property with the ASB bank, however it requiredguarantees from all of the registered owners. Legal advice was obtained about this.We return to this below at [42] of this judgment. But it appears that based on thatadvice, the Oakdale Road property was transferred to Hemant and Rita in June 2004.The Westpac mortgage was repaid and the ASB mortgage registered on the same date.At this time, Ratilal, Shanta, Hemant, Rita and their two children and Atul were livinghere.[9] In December 2004, Hemant and Rita purchased a new family home atRangiatea Road, Epsom for around $952,000. By this time, Atul had moved out soonly Ratilal, Shanta, Hemant, Rita and their two children were living in the familyhome. The Oakdale Road property was sold in 2005 for $545,000, and the ASBmortgage of $475,180 repaid.[10] In August 2010, Hemant and Rita sold the Rangiatea property and purchased anew family home at St Andrews Road, Epsom for $1,750,000.The Krisaj properties[11] Three properties at Central Avenue, Papatoetoe; Coronation Road, Epsom; andPortland Road, Remuera were acquired, it appears by Hemant, in the 1980s.Those properties were transferred to Krisaj on May 2006. The Central Avenue andCoronation Road properties were sold to third parties in 2010 and 2011.Deed of acknowledgment of debt and wills[12] In 2011, Ratilal was diagnosed with prostate cancer. In June 2011, Ratilal andShanta met with a lawyer, Sean Kelly. Mr Kelly was, at that time, Hemant's and Rita'ssolicitor. A file note of that meeting records:Regarding the loan of $140,000.00 they advise me that Mr and Mrs Patelsenior invested $140,000.00 initially into the purchase of 42 Oakdale Road,Hillsborough. They consider that as a loan to their son Hemant. It was the netproceeds of sale of their home at 12 Carlie Street, Papatoetoe which they soldin 1990.Instructed to docment [sic] that as a deed of acknowledgment of debt of$140,000.00 to their son Hemant. The loan is interested free and upon demand.They advise me that they have lived with their son and daughter in law since1990 and that their son and daughter in law have provided for them and theyhave lived rent free.They just want the $140,000.00 to be documented as a loan. Upon the deathof the survivor of them the $140,000.00 should then be divided between theirfour children in equal shares. Effectively then Hemant will pay $35,000.00 toeach of his two brothers and his sister.[13] He also prepared their wills. A file note of their instructions states:Mr and Mrs Patel senior advise me that their property comprises:1. The loan of $140,000.00 to their son Hemant.2. Mr Patel's holiday home which is known as the address thatRita's written out on page 3 of my handwritten notes. Theproperty is in the district of Navsaree in the state of [Gujarat].3. A one sixth share of other land in India.Mr Patel wishes to leave that property to his wife and then when she dies tohis children.Mr Patel would like to put a direction in his will that the holiday home shouldstay in the family (that's the half share in the property at Navsaree, [Gujarat]).[14] A deed of acknowledgement of debt (the Deed) and wills (Wills) weresubsequently prepared by Mr Kelly. The Deed was executed on 29 June 2011. It waswitnessed by Mr Lamont. The Wills were executed on 12 July 2011. They werewitnessed by Mr Lamont and Rita's sister. The Deed and the Wills accurately reflectthe instructions recorded in Mr Kelly's file note.Shanta's estate[15] Ratilal passed away in 2011. He left his estate to Shanta. Shanta passed awayin 2017. She left her estate to be divided evenly among the children. It largelycomprised only of a debt owing by Hemant in the sum of $128,000.00 together with asmall sum in her ASB bank account, and unquantified interests in gold jewellery, ahalf share in a holiday home in India and a one sixth share of other land, also in India.Jayshree's basic claims[16] Jayshree claims that this value represents only a fraction of the value of theproperty accumulated by her parents over their lifetimes. She says that Hemanteffectively deceived them into transferring the family assets to him for less than fairvalue. She also says that Hemant also had the benefit of their parents' income overthe span of some 30 years. He is then said to have used his parents' wealth to acquireproperties now valued in the order of $10 million. A corollary of this is that, in short,Hemant and Rita hold their properties subject to a constructive trust in favour of thebeneficiaries of Shanta's estate.The High Court judgment[17] The Judge identified two constructive trust claims, one based on fraudulent ordishonest transfer of the parent's family home and one in relation to the use of theparent's superannuation payments.2 These two claims are said to devolve into thefollowing issues:3(a) Issue 1:Did Hemant and Rita fraudulently or dishonestly trick Ratilal andShanta into signing the transfer instrument in May 2004 incircumstances where they knew Ratilal and Shanta were receivingnothing in return?(b) Issue 2:Did Ratilal and Shanta make contributions to the acquisition,preservation or enhancement of the Oakdale, Rangiatea andSt Andrews Road properties or property owned by Krisaj? If theanswer to this question is yes:(i) Were such contributions made with an expectation of aninterest in the subject property or properties?(ii) If so, was that expectation reasonable?(iii) Should the defendants reasonably be expected to yield theplaintiff's derivative claim and interest in the subject propertyor properties?[18] On the first issue, the Judge set out Jayshree's submissions that the transfer wasunlawful because:4(a) Ratilal and Shanta (and Atul) did not provide their consent orauthority in writing for the title to be transferred into Hemant andRita's name.(b) Hemant and Rita did not provide consideration for the transfer.(c) Hemant and Rita did not give Ratilal and Shanta (and Atul) theopportunity to seek legal advice before the transfer was signed.(d) There was no independent Gujarati lawyer or interpreter providedto explain the effect of the transfer.2 Judgment under appeal, above n 1, at [85].3 At [86].4 At [90].(e) Ratilal and Shanta's (and Atul's) signatures were not properlywitnessed by Mr Lamont, who had a conflict of interest but alsogave unreliable evidence.Consent to transfer and refinancing[19] The Judge found that Ratilal and Shanta consented to the transfer.5 In reachingthis view the Judge relied on the nature of the roles of and relationships between thefamily members. The Judge found that Ratilal had a leadership role in managing thefamily's finances with the approval of the family, that he wanted each of the childrento own a property, and he instigated the refinancing of the loan over the Oakdale Roadproperty. The Judge also found that there was nothing unusual about Ratilal engagingwith the bank, and that Rita attended the meeting with the bank and Shanta did not.The Judge also observed that Ratilal would have explained the refinancing issues toShanta.Legal advice and signatures witnessed[20] The Judge noted that the bank required guarantees from the owners of theproperty and that this led to the parties obtaining legal advice from a solicitor,Mr Sanders. While file notes of the advice were no longer in existence, a detailed billof costs survived. This bill refers to Ratilal, Atul and Shanta being "merely nominalowners of the property at Oakdale Road".6 Mr Sanders accepted undercross-examination that he did not know that Ratilal and Shanta contributed $140,000to the purchase price of Oakdale Road and that it was not likely that the parties toldhim about it.7[21] The Judge also observed that while there was a potential for a conflict ofinterest and Mr Sanders should have obtained written consent to act for Ratilal, Shanta,Hemant and Atul, verbal consent was obtained and that this broadly conformed to therequirements of the time.8 More specifically, the Judge found Mr Sanders told Ratilalthat he could obtain separate legal advice in relation to the transaction and that this5 At [94]–[97].6 At [104].7 At [104].8 At [108] and [112], citing Clark Boyce v Mouat [1993] 3 NZLR 641 (PC).advice was passed onto to Shanta.9 The Judge further observed that "if Ratilal haddecided independent legal advice was not needed, Shanta would have agreed with thatapproach."10 The Judge also placed no significance on the fact that Mr Sanders hadbeen found guilty of professional misconduct in respect of unrelated matters.11[22] The Judge also found that a Justice of the Peace, Mr Lamont, witnessed thesignatures of Hemant, Ratilal and Shanta and that Mr Lamont did not witness anycoercion.12 She was further satisfied that Ratilal had an adequate understanding ofEnglish, so an interpreter was not necessary, and that while Shanta may not haveunderstood business English, Ratilal would have explained what was occurring toher.13Consideration[23] The Judge rejected Jayshree's claim that there was no consideration for thetransfer, noting that consideration had been provided by the verbal agreement that the$140,000 from the sale of Carlie Street was a loan to Hemant and Rita to be repaid ondemand and that Hemant and Rita would pay for any significant medical expensesneeded by Ratilal and Shanta.14Trickery[24] The Judge also rejected Jayshree's claim that the Deed was void because noprudent lawyer would write that they lived "rent-free" in a house that was their familyhome or that they would give an "interest free" loan. The Judge observed that infamily situations, there are many occasions when deeds of debt are entered in theseterms.15 The Judge also rejected the claim that Rita planned and orchestrated thepreparation of the Deed, noting that she simply organised the meeting with Mr Kelly.16The Judge also dismissed concerns about language difficulties.179 At [112] and [113].10 At [113].11 At [115].12 At [119].13 At [123].14 At [124].15 At [133].16 At [135].17 At [145].[25] Overall on the first issue, the Judge concluded that while the documenting ofthe arrangements between the family members was not ideal and some members mayhave had different expectations, Ratilal and Shanta were not duped.18 The Judge alsoobserved that Ratilal and Shanta received no income from 1981 until 1991 whenRatilal started to receive superannuation, and after only two years of purchasing CarlieStreet, Hemant became responsible for the mortgage as well as providing income forthe family. Twelve years later, the Oakdale Road property was acquired based on anequity contribution of $140,000, while Hemant funded the mortgage and the otherinvestment properties.19Superannuation and other contributions[26] Turning to the second issue, Jayshree claims that a constructive trust arises inrelation to the Rangiatea and St Andrews Road properties on the basis that Ratilal andShanta's incomes, including the unemployment benefit and superannuation wenttowards those properties.20 The Judge identified the key issue as being whetherincome received from Ratilal and Shanta was used for and to benefit the assets nowheld by Hemant and Rita.21 In this regard the Judge observed that the two bankstatements available of Ratilal's accounts suggest fortnightly superannuationpayments of $383.22 with no transfers out; it was not possible to quantify Ratilal'searnings between 1991 to November 2011; and Shanta's total superannuation between11 October 2011 to 30 October 2017 was $119,581.29.22 She then made the followingkey findings:23(a) Prior to 2004, there is insufficient reliable evidence to satisfy me ofJayshree's claim that such a trust arises.(b) Although care must be taken to infer too much from Ratilal's two bankstatements, they tend to support Hemant and Rita's account that in2004 Ratilal's superannuation income was used for Ratilal andShanta's personal expenses.(c) After 2004 and before October 2010, there is insufficient reliableevidence to satisfy me of Jayshree's claim that a trust arises.18 At [148]–[151].19 At [151].20 At [153].21 At [158].22 At [160]–[162].23 At [164].(d) After October 2010 and up to Ratilal's death in November 2011,Shanta's bank statements tend to support Hemant and Rita's accountthat Ratilal and Shanta's superannuation income was used for theirpersonal expenses.[27] While the Judge made no express credibility findings, it is clear from herconclusions regarding allegations of dishonesty in relation to day-to-day matters, thatshe found Hemant and Rita to be honest witnesses. The Judge referred to and acceptedRita's evidence that Ratilal's and Shanta's income did not got to the properties, thatsome of their money went to investments or family in India,24 that sometimes moneywas put to groceries, and that deposits into the family account were for things likegroceries, healthcare/medical expenses, clothes or gifts.25 She also accepts Rita'sevidence that the payments made by Shanta to Hemant and Rita's account amountedto $27,54026 and payments by Shanta into other savings account were reimbursementsfor money spent on gifts, purchases or for money sent overseas.27 Finally, the Judgefound that no contributions were made to Krisaj.28[28] In the result, the Judge found that Ratilal and Shanta did not make contributionsto the Oakdale, Rangiatea or St Andrews Road properties or any property owned byKrisaj.29The alleged errors[29] Jayshree's appeal rests on the following key claims:(a) Rita and Hemant were dishonest witnesses.(b) The financial contributions made by Ratilal and Shanta weremisrepresented and substantially underestimated.(c) Rita and Hemant were dishonest about the transfer of the Oakdaleproperty.24 At [169] and [170].25 At [171] and [172].26 At [173].27 At [175]–[177].28 At [178].29 At [180].(d) The Oakdale property transfer was unlawful.(e) The Deed and the Wills are a sham.[30] We address each of these key claims before coming to a view on whether theJudge was wrong in any material respect. For completeness we do not address claimsthat Hemant failed to discharge his duties as executor as that matter was not pleadedor properly argued in the High Court. Moreover, it adds nothing to the central claimsmade by Jayshree.30Dishonest witnesses[31] Jayshree claims to have exposed multiple instances of dishonesty by Rita andHemant. We consider these claims to be unfounded and largely conjectural.For example, she contends that Rita unlawfully collected Work and IncomeNew Zealand (WINZ) overpayments out of Shanta's account after her death, wasevasive under cross-examination about this and that the Judge promised to addressthis, but never did. Reference is also made to bank statements said to show that Ritagained access to Shanta's accounts the day after her death, again without permission.Jayshree claims instances of other allegedly dishonest takings or behaviour, includingpayments totalling $12,900 out of Shanta's account in the financial period ending12 January 2017. This is said to be an instance of doubling dipping by Hemant forfuneral expenses (in the sum of $12,000) already transferred to their accounts in 2013.Jayshree also highlights that amounts spent on groceries or on a property in India areexcessive. All of this is said to show that Rita and Hemant were dishonest.[32] We see nothing in these points. Rita gave evidence that she would have repaidWINZ for any money overpaid into Shanta's account. She also gave evidence thatwithdrawals the day after were used for funeral expenses. More generally Rita wassteadfast under cross-examination that withdrawals made from Shanta's accountwould have been made at her request. We have not identified any basis to justify a30 This claim was only raised in Jayshree's closing submissions and not pleaded. As to jurisdictionto disregard fresh matters raised on appeal see McCollum v Thompson [2017] NZCA 269, [2017]NZAR 1106 at [52]–[54]; and Foodstuffs (Auckland) Ltd v Commerce Commission [2002] UKPC25, [2004] 1 NZLR 145 at [9].finding that Rita is to be disbelieved about any of this. Furthermore, we could find noevidence of "double dipping" in respect of Ratilal's funeral expenses. On the contrary,on our review of the evidence, Rita plausibly explained that the $12,900 likely relatedto travel expenses involving a trip to Dubai, Singapore, and India.Financial contributions[33] Jayshree submitted that based on the available evidence it can be inferred thatRatilal and Shanta made very significant contributions to the family over theirlifetimes not properly accounted for by Hemant and Rita. She referred in particular tounaccounted for unemployment benefit payments, New Zealand Superannuationpayments and evidence of regular withdrawals out of Shanta's accounts to a generalaccount out of which the loan and interest payments owing by Krisaj were made.Based on her estimate, her parents would have collected at least $491,542 inSuperannuation payments in the period from 1991 to 2017. Prior to this she submitsthat they would have also received unemployment benefits.[34] Ms Arthur for Hemant and Rita submits:(a) There is no evidence that Ratilal and Shanta received an unemploymentbenefit.(b) Ratilal received $383.22 a fortnight in superannuation between 13 Mayand 6 September 2004, but no transfers or withdrawals were made outof his account.(c) Between 11 October 2010 and 30 October 2017, Shanta received$119,581.29 in superannuation payments, at an average of $17,083.04per year or $328.52 per week.(d) In the same period, Shanta transferred money into five accounts, themajority of which were into Hemant and Rita's "01" account — andthis was a mixed funds account and used by the family as a generalaccount.(e) The total of Shanta's transfers was $27,540 while over the same periodthe contributions made by Hemant and Rita were $602,608.59.(f) There were no direct payments from Shanta's account to a Krisajaccount.Analysis[35] There is no direct evidence that Ratilal or Shanta received an unemploymentbenefit. Jayshree's recollection otherwise based on her time working in the "SocialWelfare Department" is unsubstantiated. We therefore give that claim no furtherconsideration.[36] We accept that contributions appear to have been made by both Ratilal andShanta out of their superannuation incomes into a general account in the name ofHemant and Rita. We also accept that Ratilal likely would have made contributionsto this general account while he was receiving superannuation. But based on theavailable evidence, those contributions were likely to have been relatively modest. AsMs Arthur highlighted, Shanta's total contribution to the general account was $27,540over about seven years, while in the same period, Hemant's and Rita's contributionwas about $602,000.[37] There is also no evidence that Ratilal and Shanta made contributions directlyto the benefit of Krisaj. While the contributions made by them to Hemant and Rita'sgeneral account added to the net pool of funds then used to pay among other things,loan principal and interest owed by Krisaj, the same account was used to pay thefamily's general expenses, including living expenses incurred by Ratilal and Shanta.In the result we see no merit in Jayshree's claim about unaccounted for contributionsfrom income.Trickery and unlawful transfer[38] Jayshree effectively repeats in this Court the claims she made in the High Court— Ratilal and Shanta were tricked unlawfully into the transfer of the Oakdale propertyto Hemant and Rita in 2004. She emphasises:(a) Her parents contributed $140,000 (57 per cent) to the purchase price ofthe Oakdale Road property, while Hemant contributed nothing.(b) Hemant's claim that he supported the family since the 1980s wasplainly untrue given that he was only a teenage school leaver then.(c) Hemant used $40,000 of a mortgage in respect of the Oakdale propertyfor his personal benefit and should account for this.(d) The contribution by Ratilal and Shanta was never disclosed toMr Sanders, the lawyer advising on the transfer.(e) Rita's failure to disclose the $140,000 contribution to the Oakdaleproperty was dishonest and she misled Mr Sanders when she saidRatilal and Shanta were "nominal owners".(f) Mr Sanders was both conflicted and negligent — among other thingshe did not properly document his advice and he had no clear consent toact or instructions from Shanta, having never met her.(g) Mr Sanders should have documented his instructions and consent to actin writing (citing s 2 of the Contract Enforcements Act 1956 and ss 164,164A and 164C of the Land Transfer Act 1952).(h) The transfer was not properly witnessed (Atul testifying as much).(i) The witness, Mr Lamont was effectively a family friend and thereforeconflicted.(j) Rita had no basis to become a legal owner.[39] Ms Arthur submits that there was ample evidence to support the Judge'sfindings that there was no fraud, that Ratilal instigated the Oakdale property transferand was properly advised by Mr Sanders; and that Ratilal would have explainedMr Sanders' advice to Shanta and that they voluntarily signed the transfer instruments.She also submits that the Judge was correct to find that Ratilal and Shanta consideredthe $140,000 from the sale of the Carlie Street property to be an interest free loan toHemant, subsequently documented in 2011.Analysis[40] In essence, Jayshree claims that Hemant and Rita fraudulently obtained theirinterest in the Oakdale Road property from Ratilal and Shanta. Having done so, sheclaims that the benefits of that fraud should be transferred to Shanta's estate.Undoubtedly if there were such a fraud or similar wrongdoing, this Court would havelittle trouble in requiring Hemant and Rita to disgorge their profits from it.31 But theremust first be some wrongdoing by Hemant and Shanta. We acknowledge Jayshree'sclaims on this matter however, in agreement with the High Court Judge, we find thatJayshree has failed to prove any such wrongdoing by Hemant and Rita.[41] As Ms Arthur submits there is ample basis in the evidence to find that Ratilalinstigated the Oakdale Road property transfer, and that he and Shanta agreed to lendthe value of their interest in the Carlie Street property to Hemant. As Hemant plausiblyexplains, his parents wanted him to use this money for their large expenses likehospital bills, in the future. As he also plausibly explains, his parents did not want toguarantee a mortgage loan over the Oakdale Road property. There is also ampleevidence that Hemant and Rita carried the responsibility for the mortgages over thevarious properties. Their account is consistent with the available documentary record,including bank statements, and for reasons we will come to, we are satisfied that theDeed and the Wills are no sham. Finally, lengthy cross-examination by Jayshree didnot undermine the credibility or reliability of Hemant and Rita's evidence.[42] In terms of Mr Sanders' dealings with Ratilal and Shanta, we are satisfied theywere adequately advised about the legal significance of the transfer of the OakdaleRoad property to Hemant and Rita. As noted in Clarke Boyce v Mouat:3231 Peter Blanchard (ed) Civil Remedies in New Zealand (2nd ed, Brookers Ltd, Wellington, 2011) at[10.2.3] and cases cited therein. See also Avondale Printers & Stationers Ltd v Haggie [1979] 2NZLR 124 at 160 and 163.32 Clark Boyce v Mouat, above n 8, at 646.There is no general rule of law to the effect that a solicitor should never actfor both parties in a transaction where their interests may conflict. Rather isthe position that he may act provided that he has obtained the informedconsent of both to his acting.[43] The evidence shows that Mr Sanders was instructed to act for Ratilal, Hemantand Rita on the transfer, obtained their verbal consent to act for all of them, advisedthem to obtain independent legal advice, and advised them that the transfer wouldobviate the need for Ratilal and Shanta to be guarantors. There is also evidence fromHemant that they all consented to Mr Sanders acting for all of them, that Mr Sandersgave legal advice to Ratilal, that Ratilal understood what was happening, and that heexplained what was happening to Shanta. We have no reason to doubt the credibilityof this evidence. Furthermore, there is nothing of substance in the evidence to suggestthat Shanta was pressured into agreeing to the transfer or the debt arrangements.We also consider that the transfer was properly documented and likely to have beenproperly certified.33[44] We acknowledge that Mr Sanders was told that Ratilal and Shanta werenominal owners only and he was not told about the $140,000 they had contributed tothe purchase of the Oakdale Road property. But both these matters are consistent withthe fact that there had been a prior agreement that their contribution to the purchaseprice be converted to a debt owed by Hemant to be used to pay for their large expensesin the future. We also see nothing in the fact that Mr Lamont, a Justice of the Peace,witnessed the signing of the transfer documents. While he was well-known to thefamily, there is nothing to suggest that it affected his capacity to properly witness theexecution of the 2004 transfer instrument.34[45] Accordingly, like the Judge, we reject Jayshree's complaint about trickery.There was none. The transfer was simply one part of a mutually beneficial familial33 This responds to Jayshree's claim of breach of s 2 of the Contract Enforcements Act 1956 andnon-compliance with ss 164, 164A, 164B and 164C of the Land Transfer Act 1952 (LTA). Forthe former, the key requirement for documentation in writing was clearly met. The LTA provisionsrelate to the certification of instruments and retention of evidence relating to the certification.Mr Sanders gave evidence that his practice would have been to note on his file the advice given,but this file no longer existed at the time of the hearing.34 Atul gave evidence that his signature was not witnessed. Mr Lamont was however adamant undercross-examination he was present at the signing of all signatures. We have no reason to doubtMr Lamont's credibility on this issue.arrangement, involving Ratilal and Shanta living in the various family homes for morethan 30 years, much of that time free of the burden of mortgage debt or rental costs,and supported by Hemant and Rita in their dotage until they passed away.The Deed and Wills[46] Jayshree submits that the Deed and the Wills were orchestrated by Rita.She highlights that the Deed was only reduced to writing when her father wasbedridden and relates to a transaction that occurred in 1990. Jayshree notes thatMr Kelly was Hemant's property lawyer, her parents did not have a good grasp ofEnglish, and did not receive independent legal advice, even though Mr Kelly advisedthem they would need independent advice in relation to an enduring power of attorney,because he had acted for Hemant and Rita.[47] Jayshree also submits she had caught Hemant out in a lie when he said he hadnever been to Penney Patel solicitors, because his signature had been witnessed byMr Patel on a mortgage document. She said this was significant because Hemantwould not have wanted Mr Patel involved as he would have explained in Gujarati toRatilal and Shanta what Hemant and Rita were about to do with their Oakdale Roadproperty.[48] Ms Arthur responds that the Judge correctly rejected these complaints.Analysis[49] We agree. Mr Kelly diligently recorded his instructions and gave effect tothose instructions. While Mr Kelly was a long-time advisor to Hemant, his file noterecords the care with which he approached his advice to them, including an instructionthey should receive independent legal advice on the issue of the power of attorney.Moreover, there is nothing to suggest on any of the evidence that Ratilal and Shantawere forced or duped into the debt arrangement agreement with Hemant. The Willsaccorded with the instructions given and conform to the usual requirements fortestamentary instruments. We also agree with the Judge that the instruction to appointHemant as their attorney for all purposes reflected the faith Ratilal and Shanta had inHemant.Overall assessment[50] We have not identified any material error in the Judge's reasoning. We cansee no basis whatsoever for a derivative interest in the properties held by Hemant andRita vesting in Shanta's estate. As the Judge observed, the overwhelming weight ofthe evidence supports a finding that this was a close and loving family and that thecontribution to the financial and emotional wellbeing of Ratilal and Shanta by Hemantand Rita was significant. While the transfer of the Oakdale Road property to Hemantand Rita and the associated debt arrangements could have been better documented,like the Judge, we are satisfied it was approved by both Ratilal and Shanta as part of alifelong commitment between family; and there is nothing to suggest that Ratilal orShanta had any expectation of an interest in Hemant and Rita's properties.Result[51] The application to adduce further evidence is declined.[52] The appeal is dismissed.[53] The appellant must pay costs to the respondents for a standard appeal on aband A basis, with usual disbursements.Solicitors:Pidgeon Judd, Auckland for First, Third and Fourth Respondents