BURMEISTER V O'BRIEN & ORS HC TAU CIV 2005-470-396

BURMEISTER V O'BRIEN & ORS HC TAU CIV 2005-470-396

On the evidence before the Court the third defendant demonstrated the plaintiffs have no arguable basis to prove she had actual or imputed knowledge of the fraud or of a buy-back arrangement; inferences urged by plaintiffs are speculative and not the natural inference from documents and expert file review; knowledge of co-trustees or the solicitor cannot be imputed to her in the circumstances; accordingly plaintiffs' first, third and fourth causes of action against the third defendant cannot succeed and judgment is entered for the third defendant.

Citation
openlaw-e36ea3ff_b881_45f7_ae77_e7e8ddc4985f.pdf
Parties
Plaintiff: K.S. Burmeister; Plaintiff: V.J. Burmeister; First Defendant: J.L. O'Brien; Second Defendant: G.S. O'Brien; Third Defendant: P.E. Patterson; Fourth Defendant: G.P. Clayton; Fifth Defendant: J.F. Clayton; Sixth Defendant: M. Henley-Smith; Seventh Defendant: Auckland Savings Bank
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 April 2007
Procedural Posture
Land Transfer Act 1952; Credit Contracts and Consumer Finance Act 2003; Fair Trading Act 1986 / Application for Summary Judgment/strike Out Under R136(2) High Court Rules
Outcome
Judgment for the third defendant; plaintiffs' claims against third defendant dismissed; third defendant entitled to costs
Legal Topics
Summary Judgment, Buy Back Transactions, Constructive Trust, Land Transfer Fraud, Imputed Knowledge in Agency, CCCF Act Relief (ss 8, 118, 127), Unjust Enrichment, Trustee Personal Liability
Property Law Trusts Equity Civil Procedure Consumer Credit Law Fraud Summary Judgment Buy Back Transactions +6 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 16 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

K.S. Burmeister

Plaintiff

V.J. Burmeister

Plaintiff

J.L. O'Brien

First Defendant

G.S. O'Brien

Second Defendant

P.E. Patterson

Third Defendant

G.P. Clayton

Fourth Defendant

J.F. Clayton

Fifth Defendant

M. Henley-Smith

Sixth Defendant

Auckland Savings Bank

Seventh Defendant

Procedural Posture

Land Transfer Act 1952; Credit Contracts and Consumer Finance Act 2003; Fair Trading Act 1986 / Application for Summary Judgment/strike Out Under R136(2) High Court Rules

Legal Issues

  1. 1 whether plaintiffs can prove fraud or wilful blindness by the third defendant
  2. 2 whether the transaction(s) constitute a buy-back transaction under the CCCF Act
  3. 3 whether the third defendant can be held personally liable for unjust enrichment

Ratio Decidendi

On the evidence before the Court the third defendant demonstrated the plaintiffs have no arguable basis to prove she had actual or imputed knowledge of the fraud or of a buy-back arrangement; inferences urged by plaintiffs are speculative and not the natural inference from documents and expert file review; knowledge of co-trustees or the solicitor cannot be imputed to her in the circumstances; accordingly plaintiffs' first, third and fourth causes of action against the third defendant cannot succeed and judgment is entered for the third defendant.

Court Disposition

Judgment for the third defendant; plaintiffs' claims against third defendant dismissed; third defendant entitled to costs

Orders

  • Judgment entered for third defendant P.E. Patterson on plaintiffs' first, third and fourth causes of action
  • Third defendant entitled to costs on a 2B basis and disbursements as fixed by the Registrar