Biggs v Biggs - [2020] NZHC 768

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2017-425-000007

[2020] NZHC 768

IN THE MATTER of the Property (Relationships) Act 1976

BETWEEN

SOPHIE ANNABELLE BIGGS

Plaintiff

AND

STEPHEN TIMOTHY BIGGS

First Defendant

AND

STEPHEN TIMOTHY BIGGS as trustee for the TIM BIGGS FAMILY TRUST

Second Defendant

AND

LAGUNA BAY CAPITAL PTY LIMITED

as trustee for the LAGUNA BAY CAPITAL TRADING TRUST

Third Defendant

AND

LB MANAGEMENT PTY LIMITED as

trustee for the LAGUNA BAY CAPITAL MT TRUST

Fourth Defendant

Hearing: 7 February 2020

Counsel:

D Chambers QC for the Plaintiff

M J McCartney QC for the First Defendant

Judgment:

20 April 2020

JUDGMENT OF NATION J

[1] These proceedings have been in train since 2016. A three week hearing is scheduled to begin on 22 June 2020.

BIGGS v BIGGS [2020] NZHC 768 [20 April 2020]

[2] On 23 August 2019, Ms Biggs filed an application for a further interim distribution to her of $1,100,000, supported by a memorandum of counsel and an affidavit from Ms Biggs. Such a payment would have to be made by Mr Biggs but would be on account of whatever share of any ultimate entitlement she is held to have to property in which Mr Biggs or other defendants have an interest. It would be without prejudice to any costs order the Court might ultimately make when the proceedings are resolved.

[3] In an affidavit in support of her application sworn on 23 August 2019, Ms Biggs said she was indebted to her professionals for in excess of some $1 million, being:

(a) legal and accounting costs $976,727;

(b) Gregory Brogan – A$68,007.50; and

(c) Matthew Gwinee – A$15,500 (Australian accountancy costs).

[4] Ms Biggs said in her affidavit that the figure of $1.1 million recognised the Court had previously directed that, from the sale of the Closeburn property, each party would be entitled to an interim distribution of $1.1 million. Mr Biggs has already paid
$400,000 on account of Ms Biggs’ entitlement. Pursuant to orders of the High Court and Court of Appeal, Ms Biggs has to repay that sum to Mr Biggs when she receives that initial distribution of $1.5 million from the sale of Closeburn. She similarly sought this further interim distribution on the basis it would be repaid to Mr Biggs from the $1.5 million Ms Biggs receives from the sale of Closeburn.

[5] In her affidavit, Ms Biggs says she is the primary carer for the parties’ daughter aged six, another child aged one who I infer is the child of Ms Biggs’ current partner and she was due to have another child in the first quarter of 2020. She says she has no independent source of income, is entirely financially dependent on her partner, and her entitlements are completely tied up under these proceedings.

[6] Ms Biggs referred to evidence as to capital sums which Mr Biggs had received or spent during the separation and said, on the basis of…

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] NZHC 768
Case: [2020] NZHC 768
Decision Date: 20 April 2020

CaseChat Overview and Summary

Biggs v Biggs is a property dispute between Sophie Annabelle Biggs, the plaintiff, and Stephen Timothy Biggs, the first defendant, as well as other defendants including Laguna Bay Capital Pty Limited and LB Management Pty Limited. The proceedings began in 2016 and a three-week hearing was scheduled for June 2020. The case involves an application by Ms Biggs for a further interim distribution of $1.1 million, to be paid by Mr Biggs, on account of whatever share of any ultimate entitlement she has to property in which Mr Biggs or other defendants have an interest. The application was supported by a memorandum of counsel and an affidavit from Ms Biggs. The legal issues the court had to decide were whether an additional interim distribution was necessary for Ms Biggs to adequately fund her litigation and whether Mr Biggs had the ability to fund such a payment. The court considered the submissions of both parties and the Court of Appeal's previous decision to increase the interim distribution from $200,000 to $400,000. The court found that there was no certainty as to when a sale of the Closeburn property would be achieved and what its value would be. Additionally, the court found that Ms Biggs' attempt to obtain a further payment of $1.1 million would be an abuse of process and that the sum was not required to ensure Ms Biggs could prosecute her claims with adequate legal representation. Therefore, the application for a further interim distribution of $1.1 million was declined. The court also determined that the costs issues in connection with this application should be determined after trial.

Orders