Blackley v Blackley - [2018] NZHC 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002166

[2018] NZHC 2011

BETWEEN
AMANDA JUDITH BLACKLEY

Applicant/Respondent

AND

DAVID CHARLES BLACKLEY

Respondent/Appellant

Hearing: 21 June 2018

Appearances:

M Sandelin and J Spring for the Applicant, Mrs Blackley D Chambers QC for the Respondent, Mr Blackley

Judgment:

8 August 2018

JUDGMENT OF HINTON J

[re application for further discovery]

This judgment was delivered by me on 8 August 2018 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Minter Ellison Rudd Watts, Auckland
Deborah Chambers Ltd, Queens Counsel, Auckland

AMANDA JUDITH BLACKLEY v DAVID CHARLES BLACKLEY [2018] NZHC 2011 [8 August 2018]

[1] This judgment deals with an application for further discovery against Mr Blackley.

[2]Mr and Mrs Blackley separated in 2011 after 23 years together.

[3] Almost all of the known assets are now held in a trust called the Blackley Children’s Trust (BCT). Before that, they passed through a number of different entities.

[4]Mrs Blackley says the equity of the BCT so far as presently known is about

$4 million. Mr Blackley says it is materially less.

[5] Mrs Blackley’s claims against the BCT and otherwise, are apparently strongly disputed by Mr Blackley. As is inevitable where the assets acquired during the relationship are held in trust, the issues are extensive, including applications under s 44C of the Property (Relationships) Act 1976 (PRA) and s 182 of the Family Proceedings Act 1980.

[6] The parties agree that the case is complex. It has been wending its way through the Family Court for five years and was transferred to this Court earlier this year. A number of orders have already been made for discovery.

[7] Counsel for Mrs Blackley, Mr Sandelin, helpfully provided a Schedule “B”, being a redacted form of the original application, which excluded documents that were by the time of the hearing accepted as not necessary. A copy of that Schedule is annexed to this judgment. The left-hand column lists the documents sought. The right-hand column sets out why documents are believed to exist. The Schedule was further materially reduced in the course of argument.

[8] The documents of which Mrs Blackley seeks further discovery largely relate to three transactions, two of which were back in 2007/2008. These transactions are:

(a)The Port transaction whereby another trust called Toll Investment Trust made about $5.8 million in 2007.

(b)The High Street transaction whereby a property at High Street, Whangarei was sold in the 2007 financial year for a capital gain of approximately $3.35 million. In respect of this transaction it seems, on the basis of an email from Mr Blackley’s then accountant, Mr Verwey, to Mr Blackley, that Mr Verwey was instructed by Mr Blackley in January 2011 to “take the $3.7 million off the company’s balance sheet and let it fall by the wayside”. This was a reference to the High Street transaction, albeit a different amount. It seems that Mr…

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 Blackley v Blackley

Details

AGLC: Blackley v Blackley [2018] NZHC 2011
Case: [2018] NZHC 2011
Decision Date: 8 August 2018

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, delivered a judgment in the case of Amanda Judith Blackley v David Charles Blackley. The case revolves around an application for further discovery by Mrs Blackley against Mr Blackley, who is her former husband. The primary issue at hand is whether Mr Blackley should be compelled to provide additional documents related to three specific transactions that occurred before the separation of the parties. The transactions in question are the Port transaction, the High Street transaction, and the Hennessey transaction. Mrs Blackley contends that these documents are essential for assessing the value of the Blackley Children's Trust, determining asset classification, and tracing the movement of funds for property claims.

The court's reasoning focused on the relevance and necessity of the documents for determining the value of property and tracing the movement of funds, particularly in light of the extensive disputes and the significant sums involved in the transactions. The court found that the documents sought were relevant and necessary for the fair resolution of the case, especially considering the level of distrust and the history of non-disclosure by Mr Blackley. The court acknowledged that while the documents pertain to transactions that occurred several years before the separation, the complexity of the case and the evidence of Mr Blackley's concerning conduct justified a robust approach to the discovery order. The court also highlighted the importance of full disclosure and cooperation between the parties, emphasizing the need for both parties to address the realistic value of the asset pool and to approach the division of assets in a realistic manner.

The final orders of the court were that Mr Blackley should provide the documents listed in the amended Schedule B, subject to certain conditions. The court urged both parties and their counsel to cooperate fully over the residual discovery issues and to engage in direct discussions rather than relying on lengthy narrative affidavits. The court emphasized the need for full compliance with document requests and the provision of clear third-party proof where documents are claimed to have been lost or destroyed.

Orders