AA v La - [2016] NZHC 3163

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

THIS JUDGMENT MAY BE CITED AND REPORTED AS

VIVIAN V KELLERMAN IN ACCORDANCE WITH PARAGRAPH [149] OF THIS JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-663

[2016] NZHC 3163

UNDER Section 39 of the Property (Relationships Act) 1976

IN THE MATTER OF

an appeal against the judgment of the Family Court

BETWEEN

A A

First Appellant

AND

L A

First Respondent

CIV-2016-409-670

UNDER

Section 39 of the Property (Relationships) Act 1976

IN THE MATTER OF

an appeal against the judgment of the Family Court

BETWEEN

L A

Second Appellant

AND

A A

Second Respondent

Hearing: 31 October 2016

Vivian v Kellerman [2016] NZHC 3163 [20 December 2016]

Appearances: S Forrester for First Appellant/Second Respondent P Tucker for Second Appellant/First Respondent

Judgment:

20 December 2016

JUDGMENT OF MANDER J

[1] The two parties, A A (the husband) and L A (the wife), were unable to resolve relationship property issues arising out of their marriage separation. Judge Moran made orders relating to the division of their property.1 Both parties have appealed parts of the Family Court’s decision.

Background

The relationship and the property

[2] The couple married in Fiji in March 2002. Their relationship lasted for some nine years, during which they had two children who at the time of the Family Court hearing were aged seven and 12 years. In January 2011 they agreed to separate and their marriage was dissolved in April 2013.

[3] In June 2002, the husband entered into an agreement to buy a property in Woolston, Christchurch (the Woolston property). The property was settled in a family trust (the Trust) which was established at that time. The family lived in the Woolston property, although the bottom floor was used by the husband as commercial premises for his company, TAL.

[4] TAL had been incorporated in October 1998. The husband was the sole director and shareholder. He had originally operated a successful pet shop that closed in 2007. The husband worked as a builder for the following six months before undertaking a period of study for which he acquired a student loan. Upon completion he established a new business repairing heat pumps which he operated through TAL. The wife worked in retail during this time.

1 A v A [2016] NZFC 5749.

[5] In April 2008, a second company (the Company) was incorporated for the purpose of acquiring an investment property. The husband was the sole director, and he and the wife equal shareholders. The Company purchased a rundown residence in Phillipstown, Christchurch (the Phillipstown property). Expenditure in relation to that property including its purchase price and renovation costs were funded through borrowing. A first mortgage was secured over the Phillipstown property, while a floating loan was secured over the Woolston property.

[6] The husband undertook extensive repairs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AA v La

Details

AGLC: AA v La [2016] NZHC 3163
Case: [2016] NZHC 3163
Decision Date: 20 December 2016

CaseChat Overview and Summary

In this case, the High Court was asked to review a decision made by the Family Court in relation to the division of property between a husband and wife. The husband had appealed the Family Court's decision and the wife had cross-appealed. The High Court considered several issues, including whether the Family Court had properly exercised its discretion under the Family Proceedings Act 1980 and whether certain assets had been properly classified as relationship or separate property. The High Court found that the Family Court had exercised its discretion appropriately, and that the classification of certain assets as relationship or separate property was correct. The only issue the High Court found merit in was the husband's argument that the cost of replacing a damaged carpet should be credited to him. The husband's other arguments were dismissed, as was the wife's cross-appeal. The High Court ordered that the husband pay 75% of the wife's costs on appeal.

Orders