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Belle v Pearsall

Belle v Pearsall

Case [2023] NZHC 3147 9 November 2023

Family Court Exclusive Jurisdiction

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2207

[2023] NZHC 3147

UNDER Property Law Act 2007

IN THE MATTER OF

An agreement for sale and purchase of land and the division of the proceeds of sale

BETWEEN

ANTHONY CARL WARREN BELLE

Plaintiff

AND

LEAH ISOBEL PEARSALL

Defendant

Hearing: 1 November 2023

Appearances:

K J Sheehan for Plaintiff

T M Newman for Defendant

Judgment:

9 November 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 9 November 2023 at 10 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Kate Sheehan Lawyers, Auckland Keam Law, Auckland

BELLE v PEARSALL [2023] NZHC 3147 [9 November 2023]

[1] This judgment concerns an application for urgent interim orders, in the context of an application for summary judgment seeking distribution of the proceeds of sale of a property under s 339 of the Property Law Act 2007 (PLA). The plaintiff and defendant were husband and wife but are now separated. After separation, in November 2022 they sold their former family home in Te Kauwhata. The net proceeds are held in a solicitor’s interest-bearing trust account, pending determination of disputed issues between the parties about how they should be disbursed. As at 20 October 2023, the balance was $599,413.97. The urgent interim issue is whether part of those funds can be paid out as undisputed.

[2] The plaintiff relies on settlement discussions to establish what he says is an “undisputed” amount that should now be distributed. The plaintiff’s application dated 31 October 2023 seeks:

(a)an interim order that a certain disputed sum be retained in the solicitor’s trust account for both parties, pending resolution or determination of any claims between them;

(b)an interim order that the balance be distributed to each party’s nominated account on a 50/50 basis together with any interest;

(c)summary judgment in favour of the plaintiff in respect of the sum distributed to the plaintiff under [2(b)] above; and

(d)indemnity costs and/or increased costs and/or 2B costs.

[3] In accordance with a timetable made on 1 November 2023, this judgment determines:

(a)whether this Court has jurisdiction to make the urgent interim orders sought; and

(b)if so, whether such orders are appropriate, effectively determined on a
Pickwick basis, prior to opposition documents being filed.

Position of parties

[4] The defendant takes the position that the Family Court has exclusive jurisdiction to determine the subject matter of the application. In summary, the defendant submits:

(a)No settlement has been reached about the interim distribution of the proceeds of sale, as evidenced by this disputed application.

(b)The application is, in substance, a claim under the Property (Relationship) Act 1976 (PRA) regarding “relationship property”. As such, the application is within the exclusive jurisdiction of the Family Court. Accordingly, the High Court does not have jurisdiction to consider the application.

(c)Martin v Martin supports the above position as a matter of law and is distinguishable on the facts.1 That case…

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 Belle v Pearsall

Details

AGLC: Belle v Pearsall [2023] NZHC 3147
Case: [2023] NZHC 3147
Decision Date: 9 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Anthony Carl Warren Belle (the plaintiff) filed an urgent application for interim orders concerning the distribution of proceeds from the sale of the former family home in Te Kauwhata. Leah Isobel Pearsall (the defendant), his former spouse, opposed the application on the basis that the Family Court has exclusive jurisdiction over matters concerning relationship property under the Property (Relationships) Act 1976 (PRA). The plaintiff sought an interim order for the distribution of the proceeds on a 50/50 basis, pending the resolution of any claims between the parties. The central issue before O’Gorman J was whether the High Court had jurisdiction to make such interim orders or if the matter fell exclusively within the Family Court’s jurisdiction.

O’Gorman J held that the Family Court has exclusive jurisdiction over the substantive issues concerning the classification and distribution of the proceeds of sale, as they pertain to relationship property under the PRA. The court noted that while the High Court retains jurisdiction over certain claims under other Acts, such as the Property Law Act 2007 (PLA) or the Companies Act 1993, the core functions of determining the classification of property and making orders for the distribution of relationship property fall within the exclusive jurisdiction of the Family Court. The court rejected the plaintiff's argument that the proceeds of the sale should be classified as separate property, given that the sale occurred after the parties had separated. The court found that the plaintiff had not breached without prejudice communications by filing correspondence relating to settlement negotiations, as the parties had not reached a concluded agreement. Consequently, the High Court dismissed the plaintiff's application for interim orders and held that the matter should be determined by the Family Court. The defendant was granted costs if the parties could not agree on them.

Orders