B v B

[2011] NZSC 117

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.

IN THE SUPREME COURT OF NEW ZEALAND

SC 82/2011
[2011] NZSC 117

BETWEEN  B
Applicant

AND  B
Respondent

Court:             Blanchard, McGrath and William Young JJ

Counsel:         R C Laurenson for Applicant
P J Radich and M J Radich for Respondent

Judgment:      29 September 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed with costs of $2,500 to the respondent.

REASONS

1. This application seeks leave to appeal on the question of whether certain property has been correctly classified by the Courts below as relationship property under the Property (Relationships) Act 1976 and a related issue as to contributions under s 18B of that Act.  The applicant husband conducted a farming partnership with the respondent wife.  The husband acquired the property in issue after their separation.  He did so following settlement of his litigation against members of his family over his father’s will.  The settlement involved dealings by the parties to the litigation in other property they owned.  For the applicant this included property received under family arrangements made by his father during his lifetime.  The cost of bringing the litigation was met from relationship property and the settlement of the litigation involved extinguishment of a relationship property debt.

2. Although the application for leave challenges the Court of Appeal judgment[1] in a number of respects and the circumstances of the case are reasonably complex, we are satisfied that the proposed appeal turns on a single issue.  That is whether the Court of Appeal should have treated the benefits of the settlement of the litigation as separate property of the husband under the provisions of the 1976 Act including ss 8, 9 and 10.

   [1]B v B [2011] NZCA 292.

3. The decision of the Court of Appeal holding that the benefits received by the husband from the settlement should be treated as relationship property was based on that Court’s evaluation of the unusual and complex facts surrounding the litigation and settlement.  Its judgment in this respect was in accord with that of the High Court.[2]  We are satisfied that this decision was open to the Court of Appeal.  We are also satisfied that essentially the factual basis of the Court of Appeal’s judgment means that the proposed appeal would involve another exercise in evaluation and would not significantly address any issues of principle under the 1976 Act.

   [2]VAB v ACRB HC New Plymouth CIV-2008-443-321, 21 May 2009 [the interim judgment], VAB v ACRB HC New Plymouth CIV-2008-443-321, 11 December 2009 [the final judgment].

4. It follows that the application for leave to appeal does not raise a matter of general or public importance.  Nor in the factual circumstances does the challenge to the correctness of factual findings raise a question of substantial miscarriage of justice.[3]  Accordingly, the interests of justice test under the Supreme Court Act 2003 for giving leave to appeal is not met and the application for leave to appeal is dismissed.

   [3]For reasons given in Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, [2006] 3 NZLR 522 (SC).

Solicitors:
Billings, New Plymouth for Applicant
Radich Law, Blenheim for Respondent