Court refuses bach row appeal

One of three brothers seeking more than a third of his father’s bach in the Marlborough Sounds has been refused another appeal.

The brothers inherited equal shares of the property at Oyster Bay in Croiselles Harbour after their father Morris Parkins died in 2010. However, middle son Grant challenged this in the Nelson District Court last year, saying he contributed more to the property than his brothers, and should get a stake in the property to reflect this.

There was only a shed and a water source on the 49ha property when Morris Parkins bought it in 1990, but he and his sons worked tirelessly to clear and fence the land before starting to build a house in 1993.

Parkins, a Nelson-based builder, would make the two-hour drive to the bay most weekends to work on the house, and his sons, in their 20s, would help as their own jobs and families allowed. With Grant being an engineer, and his brothers a plumber and a builder respectively, they each brought their own skills to help.

The house was completed in 1999, and became a base for hunting and fishing trips. It was Parkins’ pride and joy, the court heard. Four years later, Parkins had retired. He acquired an old hospital building to move to the Oyster Bay property as a second bach, with its conversion becoming a fulltime project following his wife’s death.

However, he became unwell in 2008 and went into residential care, and did not return to the bach before his death. Parkins’ will said his estate, including the Oyster Bay property, should be split equally among his sons.

Grant Parkins argued last year that because he had contributed more to the property than his brothers, an institutional constructive trust had come into play, meaning he was entitled to a stake in the property reflecting how much work he had put into it.

Grant said he did roughly the same amount of work as his father on the first building. Since that building made up about half the property’s total value, Grant calculated that his contribution to the building equalled 25% of the total property value.

He argued that he should get this 25% stake before the property was split equally as the will required, so he would get 50% in total, and his brothers 25% each.

The court dismissed Grant’s claim in 2021. His appeal of that decision was also dismissed in March. Justice Gendall said that while the brothers agreed that Grant did more work on the first house, the other brothers did more work on the second house, and there was no evidence to support Grant’s claim that he directly funded work on the second house – in fact, the farm’s accounting books contradicted this.

Fatal to Grant’s claim was that his brothers would have to give up part of their shares to allow for Grant’s extra 25%, Justice Gendall said. They had contributed significantly to the property themselves, and had supported their parents in different ways at different times, he said. The following month, Grant sought leave from the High Court at Nelson to appeal Justice Gendall’s decision in the Court of Appeal, and also to submit new evidence. He listed reasons why the courts had failed to properly identify his contributions to the property, and that his brothers’ contributions had been overestimated, at a hearing on August 29.

However, Justice Cooke said in his decision this month that while they were reasonable challenges, they did not address the key reason why Grant’s claim for a constructive trust had failed.

For a constructive trust, there needed to be an expectation that a greater contribution would lead to a greater stake, the judge said. However, the brothers all admitted that they had expected to inherit equal shares.

Justice Cooke also noted that Grant’s claim for 25% of the property as constructive trust was less than the 33% share he would inherit. In oral argument with Justice Cooke, Grant’s lawyer conceded that if Parkins had left the 25% to Grant and the rest to charity instead of his sons, Grant would not have claimed constructive trust.

‘‘With respect, that demonstrates the artificiality of the claim,’’ Justice Cooke said in his decision. ‘‘It is advanced because of the relative benefits that each of the siblings have received under their father’s estate.’’

In any case, the value of the property was about $518,000, making Grant’s claim for a ‘‘comparatively modest amount’’ that did not justify the cost of a second appeal, Justice Cooke said, dismissing the application. ‘‘The cost of this litigation is eating away at the assets of the estate. It also delays the finalisation of the estate. It no doubt has adverse implications emotionally and for family relations, as well as financially. In my view it is time to bring the litigation to an end.’’