Biggs v Biggs - [2020] NZCA 231

PUBLIC VERSION

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA224/2020
[2020] NZCA 231

BETWEEN	SOPHIE ANNABELLE BIGGS Appellant
AND	STEPHEN TIMOTHY BIGGS First Respondent STEPHEN TIMOTHY BIGGS AS TRUSTEE FOR THE TIM BIGGS FAMILY TRUST Second Respondent LAGUNA BAY CAPITAL PTY LIMITED AS TRUSTEE FOR THE LAGUNA BAY CAPITAL TRADING TRUST Third Respondent LB MANAGEMENT PTY LIMITED AS TRUSTEE FOR THE LAGUNA BAY CAPITAL MT TRUST Fourth Respondent

Hearing:	4 June 2020
Court:	Miller, Collins and Woolford JJ
Counsel:	DAT Chambers QC for Appellant M J McCartney QC and D M Lloyd for First Respondent
Judgment:	11 June 2020 at 2.00 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe husband must pay the wife the sum of $700,000 without delay on the terms ordered at [97] of our previous judgment ([2018] NZCA 546).
CThe husband’s application to adduce further affidavit evidence is declined.
DThe husband is to pay costs for a standard appeal on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Miller J)

This appeal is brought against an interlocutory judgment of the High Court in which Nation J refused Sophie Biggs an additional interim distribution of $1,100,000, to be paid by her former husband, Tim Biggs, from what he maintains is his separate property and accounted for in the ultimate settlement of her claims to relationship and separate property.[1]
[1]Biggs v Biggs [2020] NZHC 768 [High Court judgment].
This judgment should be read with the judgment below, which was delivered on 20 April 2020,[2] and also with this Court’s judgment of 30 November 2018[3] in which we, among other things, examined the jurisdiction to order an interim distribution under s 25 of the Property (Relationships) Act 1976 (“the Act”), and ordered that Mr Biggs, whom we will call “the husband”, make an interim payment to Ms Biggs (“the wife”) from what he says is his separate property so she might pursue her claim to trial, anticipating that that sum would be taken into account on sale of the former family home at Closeburn Station, Queenstown. The High Court had previously ordered that he make an interim payment of $200,000 pending sale and we ordered that he pay the same amount again.[4]
[2]High Court judgment, above n 1.
[3]Biggs v Biggs [2018] NZCA 546, [2018] NZFLR 854 [Court of Appeal judgment].
[4]Biggs v Biggs [2018] NZHC 1592, [2018] NZFLR 580 [First distribution judgment] at [409]; and Court of Appeal judgment, above n 3, at [97].
Trial is now imminent. The proceeding has a firm fixture of three weeks commencing on 22 June. In the circumstances, this judgment must be brief.

Relevant background

To explain the circumstances it is necessary to refer to the judgments below, beginning with Nation J’s earlier comprehensive judgment of 29 June 2018, in which he ordered sale of Closeburn, essentially on agreed terms.[5] He ordered that each party was to receive $1.5…

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 Biggs v Biggs

Details

AGLC: Biggs v Biggs [2020] NZCA 231
Case: [2020] NZCA 231
Decision Date: 11 June 2020 at 2.00 pm

CaseChat Overview and Summary

Sophie Annabelle Biggs, the appellant, brought an appeal against an interlocutory judgment of the High Court, where Nation J had refused her an additional interim distribution of $1,100,000 from Tim Biggs, the former husband, from what he claimed to be his separate property. The interim distribution was to be accounted for in the ultimate settlement of Sophie's claims to relationship and separate property. This appeal was against the interlocutory judgment of the High Court which was read with the judgment below delivered on 20 April 2020 and also with the Court of Appeal's judgment of 30 November 2018. In the Court of Appeal's judgment, the court examined the jurisdiction to order an interim distribution under s 25 of the Property (Relationships) Act 1976 and ordered that Tim Biggs make an interim payment to Sophie Biggs from what he claimed to be his separate property so she might pursue her claim to trial.

The legal issue before the court was whether the Judge was wrong to consider the reasonableness of Sophie's costs. The court held that in the circumstances, it was permissible to consider the reasonableness of Sophie's costs when examining whether and how much Tim must pay from what may yet prove to be property to which she has no claim in law. The Judge was entitled to express a provisional view of Sophie's litigation strategy.

The court allowed the appeal and held that Tim must pay Sophie the sum of $700,000 without delay on the terms ordered at [97] of the Court of Appeal's previous judgment. The husband's application to adduce further affidavit evidence was declined. The husband was to pay costs for a standard appeal on a band A basis with usual disbursements.

Orders