BASHER v BASHER [2013] NZHC 1334

BASHER v BASHER [2013] NZHC 1334

The High Court upheld the District Court: the grandparents intended the payments to be held for the daughters and the father accepted that obligation; the three certainties for an express trust existed despite commingling because the specific wage and gift sums were identifiable; the father breached that trust by retaining and using the funds and must account for them.

Citation
[2013] NZHC 1334
Parties
Appellant: Wayne John Basher; First Respondent: Ellisha Nichole Basher; Second Respondent: Amanda Stacey Basher
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 June 2013
Procedural Posture
Civil Appeal to High Court From District Court / Hearing and Judgment on Appeal (4–6 June 2013)
Outcome
Appeal dismissed; judgment of District Court upheld
Legal Topics
Express Trust, Constructive Trust, Breach of Trust, Misappropriation of Funds, Wages Protection Act S12
Trusts Equity Family Law Employment Law Express Trust Constructive Trust Breach of Trust Misappropriation of Funds +1 more

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Parties

Wayne John Basher

Appellant

Ellisha Nichole Basher

First Respondent

Amanda Stacey Basher

Second Respondent

Procedural Posture

Civil Appeal to High Court From District Court / Hearing and Judgment on Appeal (4–6 June 2013)

Legal Issues

  1. 1 Whether funds paid by grandparents and deposited into accounts operated by the father were held on express or constructive trust for the daughters
  2. 2 Whether the elements for a constructive trust or express trust were established (three certainties, fiduciary relationship, breach)
  3. 3 Whether s 12 Wages Protection Act 1983 applied to restrict disposition instructions

Ratio Decidendi

The High Court upheld the District Court: the grandparents intended the payments to be held for the daughters and the father accepted that obligation; the three certainties for an express trust existed despite commingling because the specific wage and gift sums were identifiable; the father breached that trust by retaining and using the funds and must account for them.

Court Disposition

Appeal dismissed; judgment of District Court upheld

Orders

  • Appeal dismissed
  • Judgment in favour of Ellisha Nichole Basher for NZD 11154.98 upheld