Perriam v Wilkes HC Auckland CIV-2009-425-000284 [2011] NZHC 934 (18 August 2011)

Last Updated: 27 August 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2009-425-000284}

BETWEEN WENDY JOY PERRIAM Plaintiff

AND LAWRENCE ERNEST WILKES First Defendant

AND STEPHEN JOHN BRADSHAW Second Defendant

AND ALEXANDER MCLENNAN WILSON Third Defendant

AND LESLEY MARGARET INSTONE Fourth Defendant

AND JUDITH ELEANOR FLETT Fifth Defendant

AND QBE INSURANCE (INTERNATIONAL) LIMITED

Third Party

Hearing: 18 August 2011

Appearances: S J Callanan for Plaintiff

No appearance for Defendants or Third Party

D Chisholm for Non-Parties F Perriam and trustees of the Colorado

Trust

Judgment: 18 August 2011 at 4:15 PM

JUDGMENT OF VENNING J

ON APPLICATION UNDER S 43 OF THE PROPERTY (RELATIONSHIPS)

_{ACT 1976}

This judgment was delivered by me on 18 August 2011 at 4.15pm, pursuant to Rule 11.5 of the High

_{Court Rules.}

Registrar/Deputy Registrar

Date...............

_{Solicitors: Lewis Callanan, Auckland}

PERRIAM V WILKES HC AK CIV-2009-425-000284 18 August 2011

Hornabrook Macdonald, Auckland

Copy to: D J Chisholm, Auckland

Introduction

[1] In a judgment delivered on 11 August the Court dealt with a number of interlocutory applications in this case. One of the orders made was to revoke a preservation order made previously on an ex parte basis in relation to moneys in the bank accounts of Frank Perriam. The funds in issue were formerly in two separate bank accounts:

03-0931-0029709-17 $225,762.70;

03-0931-0029709-81 $219,885.82.

The Court directed the Registrar to return the moneys held to the solicitors for Frank Perriam, Messrs Hornabrook Macdonald. The order was revoked on the basis of a lack of jurisdiction under r 7.55.

[2] The applicant then changed tack and on 16 August made an ex parte application for an order restraining the same funds, this time relying on s 43 of the Property (Relationships) Act 1976. I did not consider it appropriate for the matter to be dealt with ex parte given the previous judgment and the involvement of counsel for Frank Perriam. I directed the application be served.

[3] The matter was served and heard at short notice before me today.

The s 43 application

[4] The application is advanced on the grounds that, through the agency of the defendant solicitors, funds belonging to Mark Perriam have been deposited in the bank account of his father Frank Perriam. In addition the plaintiff says funds have been deposited in Frank Perriam’s bank account that were sourced from Colorado Property Trust.

[5] The plaintiff claims an interest in those funds under the Property (Relationships) Act in separate proceedings. In short she alleges that the defendant solicitors, together with Mark Perriam and his father Frank Perriam, have conspired to defeat her interests under the Property (Relationships) Act in a variety of ways. In the case of Frank Perriam by allowing funds belonging to Mark Perriam and Colorado Property Trust to be laundered through his bank account in order to defeat the plaintiff’s claims under the Property (Relationships) Act.

Mr Frank Perriam’s position

[6] Frank Perriam has recently been joined as a sixth defendant but as yet an amended claim has not been filed against him. Frank Perriam opposes the application on the basis that the funds in his bank account are not relationship property and that, as noted by this Court in the previous judgment:

Generally the plaintiff’s pleading suffers from an inability to identify the source of the money which is said to be relationship property and to underlie the claims the plaintiff seeks to pursue.

Jurisdiction

[7] Section 43 reads:

(1) Where it appears to [the High Court or a District Court or a Family Court] that any disposition of property is about to be made, whether for value or not, by or on behalf of or by direction of or in the interests of any person in order to defeat the claim or rights of any other person [(party B)] under this Act, the Court may, ... on such notice being given as the Court may direct, by order restrain the making of the disposition or may order any proceeds of the disposition to be paid into Court to be dealt with as the Court directs.

(1A) The Court may make an order under this section on the application of party B, or (in any proceedings under this Act or otherwise) on its own initiative.

[8] Section 43 functions as a statutory form of interim injunction: S v S [Relationship Property].[1] Ms Callanan emphasised that an order may be made in

these proceedings even though these proceedings are not under the Property

(Relationships) Act.

[9] Mr Chisholm accepted that property in a bank account or in a solicitors’ trust account could be property for the purposes of s 43 but emphasised the plaintiff’s claim was to relationship property.

[10] However, the Commentary to Brookers at PR43.02 suggests that:

... The disposition may be of land, chattels or any other type of property in relation to which a claim could be made under the Act. It may be relationship property or separate property. ...

(Emphasis added).

[11] On an application under s 43 the onus is on the plaintiff to satisfy the Court that:

a disposition of property is about to be made;

by direction of or in the interests of any person;

in order to defeat the claim or rights of any other person under the Property

_{(Relationships) Act.}

[12] I understand from counsel that at Frank Perriam’s solicitors’ request the funds have been uplifted from the Registrar and paid to the solicitors’ trust account. I infer that they will be transferred from that trust account at Frank Perriam’s direction. To that extent I accept that it is likely there will be a disposition of the funds in the near future.

[13] I also accept it is arguable that in his instructions to the solicitors Frank Perriam will be influenced as to the disposition of the funds or at least part of them by his son Mark Perriam.

[14] I draw that inference, that the funds will at least in part be disposed of by

Frank Perriam at the direction of his son Mark Perriam, from Frank Perriam’s own

evidence. In his initial affidavit sworn on 11 May Frank Perriam acknowledged that he had received two payments from Macalisters totalling $286,154.00 in 2008 and that:

When I received the funds from Macalisters back in 2008, I understood the funds had been forwarded at the direction of Mark, apart from knowing the funds had been paid on his direction, I didn’t know what they were for or why the payments had been made. I put them on term deposit in 2008, and awaited a direction from Mark about what I might do with them. ...

[15] There is no suggestion the position has changed. Frank Perriam will dispose

of the funds he has received for Mark Perriam at Mark Perriam’s direction.

[16] Further, it appears some moneys have been paid out by Frank Perriam at the direction or at least for the benefit of his son Mark Perriam. Frank Perriam also said:

I calculate from my statements ... the amount of funds which I have paid to

Mark, are in the order of $41,000 and I paid a bill for him in the order of

$1,470.00. From the amount of $286,154 transferred to me via Macalisters, there is still a balance remaining of $243,684.00.

[17] The applicant considers that there has been more than that paid out for the benefit of Mark Perriam but that is merely speculation on her part. I prefer Frank Perriam’s evidence on that issue. The applicant’s evidence is overstated in a number of respects. For example, she refers to a payment of $300,000 which came into the trust account of the defendant solicitors in October 2008 and suggests that that supports her claim to the money in Frank Perriam’s bank account. However, the trust account records show the transfer of $300,000 by way of journals from Russell McVeagh to Lake House Trust to the Frank Perriam Trust and finally to payment of a BNZ loan for the benefit of Lake House Trust. At no time did the funds pass through Frank Perriam’s personal bank account. It also appears from the documentation that the funds were used to reduce a bank loan.

[18] Further the plaintiff is also misconceived when she refers to s 27 of the Bill of Rights Act 1990 as providing a basis to support the application. Section 27 does not guarantee any particular outcome in litigation. Rather it provides for due process rights.

[19] However, notwithstanding that, I accept for present purposes that the funds to the credit of Frank Perriam are about to be disbursed. Also on the balance of probabilities I accept it can be said that there is likely to be a further disposition in relation to those funds at the direction of Mark Perriam. Such disposition could defeat the claim or rights of the plaintiff under the Property (Relationships) Act to the extent that it may have the effect of ultimately disbursing property belonging to Mark Perriam and putting them beyond any claim the applicant may ultimately succeed in under the Property (Relationships) Act proceedings.

[20] In Ryan v Unkovich[2] the Court accepted that in the context of s 44 the principles enunciated by the Supreme Court in Regal Castings v Lightbody[3] applied so that knowledge of a consequence could be equated with an intention to bring it about. Applying that to the wording of s 43, a disposition of the moneys to or at the

direction of Mark Perriam could lead to their disposition or dissipation so that the moneys were removed from any possible successful claim by the plaintiff under the Property (Relationships) Act. That is sufficient for an arguable case of an intention to defeat the plaintiff’s claim or rights.

[21] The Court is hampered at present by the lack of any pleadings against the sixth defendant. The current pleadings in the present case are subject to an adjourned strike-out application. The Court does not have access to the pleadings in the Property (Relationships) Act case. Nevertheless, on balance I am prepared to accept that the basis for an order is made out but only in relation to those funds to which Mark Perriam could have a claim or interest. The balance of the money standing in Frank Perriam’s account must be taken as his. There is no probative evidence otherwise.

[22] There have been a number of transactions through Frank Perriam’s bank accounts since the initial deposit on behalf of Mark Perriam. On the evidence, Frank Perriam says he holds a balance of $243,684 for Mark Perriam. In addition the

_{payments from the Colorado Property Trust amount to $19,678, in total $263,326.}

[23] The restraining order will relate to that sum. I am conscious that this matter has been dealt with at short notice. Whilst I heard submissions it was not fully argued with the benefit of reference to the amended claim against Frank Perriam and the other pleadings. I reserve the position of Frank Perriam to revisit the order if necessary, particularly following the outcome of the adjourned strike-out application in this Court.

Result/order

[24] There will, however, in the meantime be an order pursuant to s 43 of the Property (Relationships) Act 1976 restraining Messrs Hornabrook Macdonald from disbursing any part of the sum of $263,362 from the moneys obtained from the Court to the credit of Frank Perriam. That sum is to be held by Messrs Hornabrook Macdonald on interest bearing deposit until further order of the Court. Alternatively if the solicitors wish, they may pay the sum back into Court to be held by the Registrar on interest bearing deposit. For the avoidance of doubt the solicitors may disburse the balance at the direction of Frank Perriam. The restraining order is to remain in place pending further order of the Court.

Costs

[25] I reserve the issue of costs to be dealt with by way of memoranda. Counsel for the non-parties has made an application for costs in relation to the other matters. The applicant should respond by 26 August 2011. Any reply by the non-parties to be filed and served by 2 September 2011. I will then deal with the matter of costs on

_{the papers.}

Venning J

---

[1] S v S [Relationship Property] [2008] NZFLR 227.
[2] _{Ryan v Unkovich [2010] 1 NZLR 434.}
[3] Regal Castings v Lightbody [2008] NZSC 87; [2009] 2 NZLR 433.