New Zealand Case Law: Decisions & Judgments

Topic

Presumption of advancement

Legal area

Court

18 Dec 2023

WU v TAN [2023] NZHC 3747

Citation

[2023] NZHC 3747
Court

High Court

On the evidence the Family Court correctly found the parental advances were loans not gifts because contemporaneous oral declarations by the transferor as recounted in affidavits and cultural/contextual evidence rebutted the presumption of advancement, and the deed of gift did not evidence an intention by the respondent to divest his beneficial interest in the Auckland house given the surrounding financial arrangements, guarantees and use of the property for joint benefit; appeal dismissed.
13 Apr 2022

CLARK v CLARK [2022] NZHC 786

Citation

[2022] NZHC 786
Court

High Court

Summary judgment was dismissed because the plaintiff's sole claim is founded on loan agreements signed after the advances; material factual issues exist as to whether those agreements reflect the parties' contemporaneous intention, and there is credible evidence raising real doubt (possible sham, duress, misleading affidavit evidence, unworkable terms and lack of implementation) such that the defendant has a tenable defence and a full hearing is required.
30 Sept 2021

KLIMENKO v KLIMENKO [2021] NZHC 2592

Citation

[2021] NZHC 2592
Court

High Court

The caveats do not lapse on summary application because the caveator has shown a reasonably arguable beneficial interest through substantial financial contributions and potentially a remedial constructive trust; removal would risk prejudicing that legitimate interest. The not-lapse order is interim and conditional on the caveator promptly issuing and diligently pursuing substantive proceedings to determine the interest.
8 Jul 2021

PENIEL CONSTRUCTION LTD (IN LIQ) v HOLLIS AND ORS [2021] NZHC 1691

Citation

[2021] NZHC 1691
Court

High Court

The Court found the four registered owners were holding the property on trust for the wider family (at least the six siblings and the parents' estates), concluded Samuela did not hold a one-quarter beneficial interest and proceeded on the least favourable assumption to applicants that he held one-sixth; weighing s342 factors, the significant hardship and innocence of the other family members outweighed the applicants' interest and the discretion under s339 was exercised against ordering sale; application dismissed and costs awarded to respondents from 5 July 2019.
25 May 2021

COMINS v THE PUBLIC TRUST [2021] NZHC 1172

Citation

[2021] NZHC 1172
Court

High Court

The Court found on the facts that the 2003 transfer was legally a gift (an advance on inheritance) but that the testator's expressed testamentary intention was to account for that advance on the distribution of his residuary estate; applying Wills Act 2007 s32 and surrounding circumstances the Court construed clause 5.1 of the 2016 will to refer to the $50,000 advance and ordered that the $50,000 be set off against the plaintiff's share of the residuary estate; the plaintiff's declaratory relief was dismissed.
24 Nov 2020

ERNI v BROOKY [2020] NZHC 3116

Citation

[2020] NZHC 3116
Court

High Court

On the evidence the advances were loans on the oral terms found by the Court: (a) house loan $309,536 advanced, interest-free, repayable at $250 per week; defendant breached by ceasing payments and entire balance became payable on demand; (b) truck loan advances aggregated and formed a loan of principal $280,000 with agreed 5% p.a. interest and $1,200 monthly payments and review after two years. Defendant failed to prove gifts, failed to discharge presumption of advancement, and estoppel defence failed. Judgment entered for plaintiffs with specified sums and interest.
19 Nov 2020

YOUNG v YOUNG [2020] NZHC 3054

Citation

[2020] NZHC 3054
Court

High Court

On the facts the court found a resulting trust in favour of Mrs Ella Young: the cash purchase price derived from the plaintiffs and her late husband, Shane made no cash contribution and his assumption of mortgage liability was solely to satisfy lender requirements rather than an intention to acquire a beneficial interest; there was no evidence of an intention to gift a half share to Shane and the joint transmission form did not rebut the resulting trust. Accordingly legal title was ordered vested in Ella Young and the notice by Ms Kim removed.
9 Oct 2019

MURRAY v PIGGOTT [2019] NZHC 2568

Citation

[2019] NZHC 2568
Court

High Court

The application for security for costs was dismissed because the plaintiff proved impecuniosity largely caused by his transfer of life savings to the defendant, the plaintiff's resulting trust claim was tenable and not meritoriously weak on the material available, and ordering security would likely deny him access to justice; these considerations outweighed the defendant's interest in protection from a barren costs order.
20 Aug 2019

REID v CASTLETON-REID [2019] NZCA 372

Citation

[2019] NZCA 372
Court

Court of Appeal

The Court allowed the appeal, holding there was insufficient evidence of a present inter vivos gift of $1,700,000 to the son and that, absent clear evidence to the contrary, a resulting trust in favour of the father arose in relation to the funds placed in the son's trading account; the presumption of advancement did not apply on these facts. Proceeds of certain share sales (Air NZ and Auckland Airport) were properly the son's. The matter was remitted for a High Court hearing to quantify parties' respective interests and resolve affirmative defences.
6 Jun 2019

SHEARING SERVICES KAMUPENE LTD (IN LIQUIDATION) (FORMERLY SHEARING SERVICES LTD AND TE WHATA SHEARING LTD) v TARAHAU FARMING LTD [2019] NZHC 1280

Citation

[2019] NZHC 1280
Court

High Court

Absent proof that the advances were gifts and with no presumption of advancement, the transfers constituted loans repayable to the liquidators; alternatively, the dispositions were voidable for inadequate consideration under s 298 Companies Act 1993. Accordingly the plaintiffs are entitled to repayment, interest and costs.