Blake v Blake
[2022] NZHC 594
•29 March 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2020-463-18
[2022] NZHC 594
BETWEEN BARTLEY BLAKE
Applicant
AND
MAYSIE BLAKE
First Respondent
HMR LIMITED
Second Respondent
Hearing: On the papers Counsel:
J Billington QC and K Lellman for Applicant
D Chambers QC, E Armstrong and I Hikaka for First Respondent
Judgment:
29 March 2022
JUDGMENT OF WHATA J
Re Costs
This judgment was delivered by me on 29 March 2022 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Tompkins Wake, Tauranga
LeeSalmonLong, Auckland
BLAKE v BLAKE [2022] NZHC 594 [29 March 2022]
[1]This is a costs judgment concerning:
(a)An appeal by Mr Blake against a decision of the Family Court;1
(b)An appeal by Mrs Blake against the same decision;2
(c)An appeal by Mrs Blake seeking the vesting of a commercial property;3 and
(d)Reconsideration of the economic disparity award.4
[2] Approaching matters in the round, Mrs Blake was the successful party – she succeeded in obtaining a favourable adjustment to the relationship property division of about $9 million.5 However, Mr Blake had some success on his appeal, was the successful party in relation to Mrs Blake’s appeal in respect of the commercial property and also obtained a reduced economic disparity award.
[3] I have come to the view that in light of this mix of outcomes, and notwithstanding my indication in the economic disparity decision that costs should lie where they fall,6 Mrs Blake should have her costs as sought, but reduced by 35 per cent.
[4]My detailed reasons follow.
1 [Blake] v [Blake] [2020] NZFC 212 [Family Court substantive decision]. See also [Blake] v [Blake] [2021] NZHC 756 [Interim decision].
2 Family Court substantive decision, above n 1.
3 Family Court substantive decision, above n 1 and Interim decision, above n 1.
4 [Blake] v [Blake] [2021] NZHC 2590 [Economic disparity decision].
5 This total is the difference between the Family Court substantive decision judgment sum for the increase in the value of the HML shares and this Court’s judgment sum for the increase in HML shares (as well as other factors) on the basis that the division of the balance of assets was similar. The difference between the Family Court judgment sum (which found Mrs Blake had a 40 per cent share in $113,780,076, see Interim decision, above n 1, at [49(b)(iii)]) and this Court’s judgment sum (which found Mrs Blake had a 50 per cent share in $108,232,663, see Interim decision, above n 1, at [62(c)]) is $8,604,301.10. I do not discount the possibility that the sum could have been as high as $9.5 million but I have been unable to verify that. The difference is not material for present purposes in any event.
6 Economic disparity decision, above n 4, at [65].
Background
The appeals
[5] Mr Blake’s appeal raised 11 major issues. Mrs Blake’s appeals raised seven issues. These issues are recorded at Appendix A of the interim decision7 and reproduced in the table attached to this judgment. The overall outcome of the appeals is that Mrs Blake gained about $9 million more in the relationship property distribution. But that conclusion belies the multi-topic and multi-layered nature of the appeals. Indeed, while Mrs Blake is the successful party overall, as the attached table illustrates, Mr Blake succeeded on 8 of the 11 major issues in his appeal. Those issues often involved the resolution of multiple subsidiary issues. The resolution of those issues impacted both on the quantum on the final award and the nature of the orders made.8
The vesting
[6] Mrs Blake failed in her application to have a commercial property vested in her. In the result, Mr Blake was the successful party to this appeal.9
The economic disparity decision
[7] The economic disparity decision of the Family Court was challenged by Mrs Blake. The outcome of that challenge was not entirely favourable to Mrs Blake.10 Rather than refer that matter back to the Family Court, the issue of economic disparity was reconsidered by this Court at the request of the parties.11 This matter was heard by me and, in the final result, the economic disparity award was reduced.12 While neither party secured the outcome they sought, on balance, Mr Blake achieved the superior outcome.
7 Interim decision, above n 1, at Appendix A.
8 At [177].
9 At [159]–[165] and [177(f)].
10 At [170]–[175].
11 Economic disparity decision, above n 4, at [8]–[9].
12 At [50].
Argument
[8] Counsel for Mrs Blake, Mr Hikaka, submits Mrs Blake should be awarded costs and disbursements of $163,523.8113 because in the overall result, she received a substantial increase of $9.5 million in her share of the relationship property pool. In the alternative, he submits that on a “issue by issue” analysis, Mrs Blake is also the successful party:
(a)Mrs Blake was successful or partially successful on four of the seven issues on her appeal;
(b)Her successes were far more substantive than Mr Blake’s successes; and
(c)Mr Blake’s limited success had no substantive effect on the outcome – the total value of these successes is $273,649 (an increase of $123,649 in regard to Jacky’s costs and of $150,000 on the interim distribution).
[9] Mr Hikaka also submits that Mr Blake failed to accept Mrs Blake’s Calderbank offers prior to the Family Court hearing, which would have been more beneficial to him than the outcome of my substantive judgment (comprising an award in favour of Mrs Blake of about $59 million).14 The Calderbank offers he says were:
(a)On 18 April 2019, Mrs Blake offered to settle on the basis that she receives assets totalling $54 million; and
(b)On 24 April 2019, responding to Mr Blake’s counter-offer of $42.072 million, Mrs Blake offered a $50 million settlement.
[10] Mr Hikaka thus submits that Mrs Blake’s Calderbank offers mean that she is entitled to costs on all steps in the three appeals even though she did not succeed on all issues.
13 Comprising scale 3 costs $108,018.00 and disbursements of $55,505.81.
14 Citing the following cases as authority for costs awards in cases involving Calderbank offers: Bowden v Bowden [2017] NZHC 1841; and Bluestar Print Group (NZ) Ltd v Mitchell [2010] NZCA 385.
Mr Blake
[11] Ms Gamble, for Mr Blake, submits costs should lie where they fall. She submits that the increase by $9.5 million of the sum payable does not automatically equate to overall success and the sum Mrs Blake received was significantly less in amount than she sought. Ms Gamble refers to Mrs Blake seeking an additional sum of between $12.397–$22.792 million under s 15 of the PRA. She also refers to Mrs Blake unsuccessfully seeking an award under s 9A of the PRA and the vesting in her of the commercial property. Ms Gamble notes further that Mr Blake was successful in six of his eleven appeal points while Mrs Blake was successful in only three of her seven appeal points.
[12] Alternatively, Ms Gamble submits that if the Court concludes Mrs Blake was the successful party, her scale costs should be reduced or refused under r 14.7 of the HCR for her actions that led to a significant increase in Mr Blake’s legal costs and disbursements. For example, she submits Mrs Blake’s counterclaim under s 15 of the PRA significantly increased Mr Blake’s costs. Mrs Blake was unsuccessful on the appeal point. Ms Gamble also says at the VMR hearing on 16 September 2021, Mrs Blake pursued an argument on interest that the Court said it was “too late to raise this claim”.15
[13] In respect of the Calderbank offers, Ms Gamble submits that while the Calderbank offer was closer in value to the sum Mrs Blake received from this Court, it was not more beneficial. She says the Calderbank offers included an immediate transfer of a commercial property and of a residential property to Mrs Blake. She says Mrs Blake did not succeed in the claims to the properties in this Court. Ms Gamble observes also Mr Blake’s Calderbank offers were reasonable and Mrs Blake would have avoided an appeal of the vesting claim if she accepted them.
[14] Ms Gamble refers to Tournament Parking Ltd v The Wellington Company Ltd as precedent for the proposition that rr 14.10 and 14.11 of the HCR do not apply to Calderbank offers made before the District Court.16 She acknowledges the Court
15 Economic disparity decision, above n 4, at [52].
16 Tournament Parking Ltd v The Wellington Company Ltd HC Wellington CIV-2009-485-2508, 19 October 2010.
maintains discretion, however, the offer must be clearly better than the judgment secured. She also refers to Strachan v Denbigh Property Ltd to support her submission that it was reasonable for Mr Blake to reject the Calderbank offer on the basis that it was made too close to the date of the hearing.17
[15] In regard to the timing of the offers, Ms Gamble submits the timing of Mrs Blake’s Calderbank offers is significant. Mrs Blake gave these offers a week before the Family Court hearing began on 29 April 2019. Ms Gamble says considerable preparation costs had been incurred by that stage. She refers to Judge Wills’ rejection of Mrs Blake’s claim for an uplift based on Calderbank offers:18
[83] The timeframe is significant and reflects the fact that those negotiations did not occur until close to hearing, in part because the party’s experts were still working together to try and resolve as much as possible…
[16] Further, Ms Gamble says Mr Blake’s appeal contended that the Family Court had erroneously overstated the calculation of the company valuations in the sum of approximately $3 million. Mrs Blake only conceded that point in oral submissions on the first day of the hearing.
[17] Finally, on the issue of scale costs, Ms Gamble says that if the Court finds costs should be awarded, she accepts that scale costs on a 3B or 3C basis is appropriate. Ms Gamble also accepts that costs for second counsel at the substantive appeal hearing are appropriate.
[18] However, Ms Gamble submits that not all scale costs Mrs Blake claims are appropriate, including:
(a)the interlocutory application for leave to appeal dated 20 February 2020 and commencement of appeal dated 27 July 2020 (and filing fee of
$540) as Ms Gamble says Mrs Blake was wholly unsuccessful with this appeal;
17 Strachan v Denbigh Property Ltd HC Palmerston North CIV-2020-454-232, 3 June 2011.
18 [Blake] v [Blake] [2021] NZFC 879 [Family Court costs decision] at [83].
(b)preparing agreed chronology (one day) when Ms Gamble says it is the same as the chronology in the Family Court;
(c)the synopsis of submissions in reply dated 3 November 2020, as the six days Mrs Blake claims for submissions dated 16 October 2020 sufficiently cover that step;
(d)the preparation of affidavit of Grant Graham dated 11 June 2021 and joint statement of experts dated 20 August 2021, as Mr Graham prepared these documents; and
(e)the submissions for Mrs Blake on s 15 issues dated 2 July 2021 and appearance at hearing on 16 July 2021 because Mrs Blake was unsuccessful in her s 15 claim.
[19]In respect of disbursements, Ms Gamble says Mr Hikaka has claimed
$50,907.45 in disbursements for Calibre Partners (Mr Graham). She says that no invoices have been provided. She submits any costs award from the Court in relation to Calibre Partners’ disbursement should be reduced to reflect the s 15 of the PRA appeal was unsuccessful and the Family Court award was reduced.
[20] In reply Mr Hikaka says Ms Gamble’s position in assessing the identity of the successful party is inconsistent with the settled approach. Mr Hikaka submits that partial success is still success.19 Mr Hikaka maintains that due to Mr Blake declining the Calderbank offers she is entitled to costs on all steps and any reduction from scale costs is inappropriate. He acknowledges that $18,356.00 is for attendances that only dealt with s 15 issues and $2,824.00 relates to the hearings on 16 July and 16 September 2021, that focused on s 15 issues. He says these attendances total approximately 20 per cent of the scale costs Mrs Blake claims.
[21] Regarding Ms Gamble’s issues with Mrs Blake’s claim of scale costs, Mr Hikaka submits Mrs Blake’s position is:
19 Referring to Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379 at [26].
(a)she acknowledges the interlocutory application for leave to appeal dated 20 February 2020 and the commencement of appeal dated 27 July 2020 (and the filing fee of $540) relate to Mrs Blake’s appeal of the Tutanekai Street vesting issue. Mrs Blake’s view is that she is entitled to costs on all appeals due to the overlap of the issues. Also, if Mr Blake accepted Mrs Blake’s Calderbank offers, none of the appeals would have been necessary;
(b)she rejects that one day claimed for preparing the agreed chronology is excessive. She says the Family Court chronology was used as a starting point for the High Court chronology. However, it was negotiated between counsel over a period of 10 working days, was the subject of several emails between counsel and went through several versions before being accepted;
(c)she maintains her position on the days claimed for the preparation of submissions and submissions in reply as set out in her 24 January costs submissions; and
(d)she says that while Mr Graham’s affidavit dated 11 June 2021 and the joint statement of experts dated 20 August 2021 was prepared by him, there was input by counsel on the approach and legal issues involved.
Assessment
[22] The threshold tests for costs are well known. Costs usually follow the event, though they may be adjusted upward or downward depending on the conduct of the parties.20 Calderbank offers which are more favourable than the ultimate recovery must be considered.21 As Mr Hikaka submits, success on more limited terms is still success.22 However, as the Court of Appeal in Weaver v Auckland City Council made
20 High Court Rules 2016, rr 14.2, 14.3, 14.5, 14.6 and 14.7.
21 High Court Rules, r 14.10.
22 Weaver v Auckland City Council, above n 19, at [26].
clear, costs may be adjusted to reflect the limited nature of that success.23 Particularly relevant to this case, the Court commented:
[26] … it is appropriate that the costs ultimately awarded to the appellants should be reduced in accordance with r 14.7(d) because, although the appellants succeeded, the time and resources necessary for the respondent to meet ultimately unsuccessful arguments significantly increased its costs.
[23]More recently, the Court of Appeal affirmed this point, noting the following:24
[25] A court may reduce the costs otherwise payable if, although the party claiming costs has succeeded overall, that party has failed in relation to an issue which significantly increased the costs of the party opposing costs.25 In assessing the question of reduced costs, there is no requirement the unsuccessful argument be unreasonable. Rather reduced costs account for the time and resources an unsuccessful party must expend to meet ultimately unsuccessful arguments by the successful party that increased the unsuccessful party’s costs.26 An assessment of comparative hearing time and any other relevant matters may be necessary to do justice to both sides, taking into account a realistic appraisal of the end result.27 But a court should not usually unpick what happened in substantial detail.28
[24] In the present case, contrary to the view expressed at the conclusion of the economic disparity decision, I accept that Mrs Blake succeeded overall – she came out of the appeals about $9 million better off. Accordingly, the starting point is an award of costs in her favour. But there are countervailing considerations. First, Mrs Blake failed on her appeal against the vesting order made in respect of a commercial property. Second, Mr Blake succeeded on several points in his appeal, which had a material bearing on quantum (including as to the quantum of base equity value and in terms of post separation contributions). Conversely, he also successfully defended several of Mrs Blake’s claims, which significantly increased his costs, including in respect of the interpretation of a shareholders agreement and the s 9A(1) claim based on unpaid earnings. Third, by the end of the appeal process, Mrs Blake continued to seek, and failed to obtain, a very substantial economic disparity award, well in excess of both the Family Court award and the award in this Court. It is also necessary to
23 Weaver v Auckland City Council, above n 19, at [26].
24 Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZCA 684 at [25].
25 Citing High Court Rules, r 14.7(d); and Court of Appeal (Civil) Rules, r 53F(d).
26 Citing Weaver v Auckland Council, above n 19, at [23] and [26].
27 Citing Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5]–[6].
28 Citing Weaver v Auckland Council, above n 19, at [24].
recall that the economic disparity assessment in this Court was a fresh substantive step, the parties electing not to have the issue referred back to the Family Court.
[25] In these circumstances I am satisfied, to properly reflect the success enjoyed by Mrs Blake, the unnecessarily increased costs to Mr Blake and the success enjoyed by him, I should award Mrs Blake scale costs and disbursements as sought, reduced by 35 per cent.
[26] I do not consider that it is necessary to engage in a fine-grained dissection of the time spent in relation to these parts of the appeals. I am satisfied that a discount of this order adequately and justly reflects the effort expended to resolve them and the relative success on multiple issues.
[27] For completeness I have considered the Calderbank offers and the cost of Mr Graham’s disparity evidence as follows.
Calderbank offers
[28] Dealing first with the Calderbank offers, pursuant to r 14.11(3) of the High Court Rules 2016, if a party offers to settle for a sum which is more beneficial to the other party than the judgment sum, then that party will be entitled to costs from the date of the offer. If the offer is close to the value or benefit to the judgment sum, it may be taken into account in deciding costs pursuant to r 14(4)(b). However, the effect of making the offer has on costs remains at the discretion of the Court per r 14(1) and (2).
[29] A preliminary point of jurisdiction must first be addressed. Ms Gamble, citing Miller J in Tournament Parking Ltd v The Wellington Company,29 submits that if an Calderbank offer is made in the District Court, but not made in this Court, rr 14.10 and 14.11 do not strictly apply. I agree. As noted by Miller J, r 14.10 applies to a proceeding in this Court. More specifically, the offer must relate to “an issue in the
29 Tournament Parking Limited v The Wellington Company Limited, above n 16.
proceeding” and proceeding means any application to the court, being the High Court.
However, as Miller J also noted:30
[4] … Calderbank offers made in the context of the District Court proceedings can still be recognised for public policy reasons:
In summary, it is a requirement of fairness that litigants – particularly defendants – have some economic means of limiting their exposure to risk of costs, and secondly the Court itself must ensure that a procedure of this character operates as an effective encouragement to settle.
(citations omitted)
[30] In any event, I consider that rr 14.10 and 14.11 provide a helpful frame through which to consider Calderbank offers for the purpose of costs, including the express reservation of an overriding discretion. The nature of that discretion was described by the full Court of Appeal in Aoraki Corporation Limited:31
… The discretion as to costs is a judicial one to be exercised according to what is reasonable and just to both parties and the public interest in the fair and expeditious resolution of disputes requires full weight be given to the extent to which costs were properly incurred subsequent to the non-acceptance of an offer of settlement at a figure above the amount eventually awarded in the litigation.
[31]I proceed on that basis.
[32] Mrs Blake made an initial offer based on a 45 per cent division of the relationship property, based on a mid-point between the valuation of the valuers engaged by the parties, that is about $54 million. The implementation of the agreement is left to be agreed or to be addressed at trial. No specific quantum is specified, but the “formula calculation” is said to be “clear and straightforward.” Mr Blake counter-offered with a proposal worth about $42 million and he set out in principle the terms for implementation including transfer of the commercial property and a residential property. Mrs Blake responded, in her second offer, “that any settlement to be acceptable … must be a value of at least $50m.” She also said she
30 Tournament Parking Limited v The Wellington Company Limited, above n 16, at [4], citing Moore v McNab (2005) 18 PRNZ 127 (CA) at [58].
31 Aoraki Corporation Limited v Colin Keith McGavin [1998] 3 NZLR 276 (CA) at 300 per Richardson P, Gault, Henry, Keith, Blanchard and Tipping JJ. Thomas J differed from the majority in some respects, but it appears not on this issue.
would be prepared to pursue a “full and final” settlement comprising multiple conditions, including:
(a)cash payment of $28 million within 60 days and a late payment clause of 12% per annum, compounding daily;
(b)the transfer of the commercial and a residential property;
(c)the family home (a large property) will be divided to take into account geographical features;
(d)artwork will be sold and proceeds divided equally; and
(e)an adjustable payment to Mrs Blake of $14,089,000 payable within 2 years with interest at 4% for the first two years and 12% per annum compounding daily thereafter.
Analysis
[33] While it is difficult to be definitive, the final judgment sum in Mrs Blake’s favour is approximate to or exceeds the cash value of her first offer.32 In simple terms, she offered to settle on the basis of a 45 per cent share of the relationship property and she was awarded 50 per cent of that property by this Court. The most salient judgment sums33 also appear to exceed the second offer in monetary terms, except that I have not been able to calculate the impact of the interest terms of the second settlement offer. In very rough measure, the implications of interest in the event of default on the sum payable could be very significant, and arguably would exceed the judgment sums depending on the nature of any default.
32 The offer was based on the 45 per cent of a midpoint between two valuations - $130 million and
$110 million. Assuming a starting point of $120 million, the settlement offer sum was $54 million. The final judgment sum in favour of Mrs Blake is $51,929,647. However, the value of each party’s share in the relationship property, inclusive of the value of property held by their respective family trusts, was $55,259,111. Therefore, it appears that the value of the judgment to Mrs Blake exceeded the offers (subject to the impact of the interest terms of the second offer). Mr Hikaka submits that the final value to Mrs Blake was $59 million. While Ms Gamble does not dispute this, I have been unable to interrogate this number. I prefer then to rely on the judgment sums.
33 As noted above.
[34] In any event, the first offer left open for resolution a number of unspecified matters to be settled or contested. For example, as is evident from Mr Blake’s counter- offer and Mrs Blake’s second offer, the timing of payments, interest cost on default, how payment might be achieved, the valuation of property, and the nature of the property division were still critical matters to be agreed or litigated. In this regard, amplifying the ambiguity of the first offer, some aspects relating to the nature of the property division (for example the ownership of the Family home and the ownership of a commercial property) were hard fought before me. The first offer was not therefore, on its face, a full and final settlement offer that would necessarily have resolved the proceedings and thus costs exposure, if accepted. While it is not necessary for a Calderbank offer to include matters of detail relating to implementation, it must still achieve its purpose, namely, to effectively settle the proceedings and reasonably limit exposure to costs. It does not do this.
[35] However, I accept the second offer better meets the basic criteria to settle the proceedings and reasonably limit exposure to costs, but there are two important qualifiers to this. As noted, the amount payable for default is subject to a method of calculation, but the quantum of the exposure is not readily quantifiable – it depends on the extent of any default. That makes any final assessment of relative benefit difficult to make. Furthermore, the final judgment did not include orders in respect of the commercial or a residential property, and by including these matters as a condition of full and final settlement, together with other conditions, it is not entirely clear to me that the settlement offer is qualitatively clearly superior to the final judgment sum.
[36] Nevertheless, assuming that it was, I am not persuaded I should exercise my discretion to require Mrs Blake’s costs be paid from the date of the offers. First, Mr Blake was vindicated in terms of his opposition to Mrs Blake’s claim on appeal in respect of the commercial and residential properties. Accordingly, his refusal to settle with them included, unless for a lesser settlement sum only, was not obviously unreasonable. Second, Mr Blake’s success in the appeals is a relevant consideration. In the seminal case concerning Calderbank offers, Calderbank v Calderbank,34 the husband had received an offer to settle that was superior to his award at first instance.
34 Calderbank v Calderbank [1975] 3 All ER 333 (CA)
While he was liable for the wife’s costs at first instance, the Court of Appeal awarded him costs for his success on the appeal.35 While Calderbank v Calderbank is not directly comparable because Mrs Blake is overall the successful party on the appeals, Mr Blake’s success on the appeals is relevant to the exercise of my discretion, bearing in mind also the offer to settle was not repeated at the appeal stage.
[37] Accordingly, I am satisfied that costs following the event, discounted to reflect the matters noted above, is reasonable and just in the circumstances of this case.
Disbursements
[38] In terms of the cost of Mr Graham’s economic disparity evidence, that evidence was instrumental to the result. While this award was reduced from the Family Court award, and Mrs Blake did not obtain the relief sought by her, the final relief obtained improved Mrs Blake’s position from the interim decision, wherein I foreshadowed that any disparity is unlikely to be unjust.36 In terms of proof, disbursements of this quantum should normally be supported by an affidavit, but I am prepared to accept counsel’s assurance about this. If, however, this aspect remains in dispute, I grant leave to Mrs Blake to file an affidavit confirming that the attendances were reasonably incurred with the requisite supporting material. Further, I reserve leave to the parties to come back to me on this aspect if necessary.
Outcome
[39] Mrs Blake shall have her costs and disbursements as claimed, less 35 per cent. If necessary, any residual dispute about quantum is to be resolved by the registrar. I reserve leave, however, for the parties to come back to me on the issue of the proof of disbursements. Costs can be expected on that step.
35 Calderbank v Calderbank, above n 34, at 343.
36 Interim decision, above n 1, at [170]–[175] and [177(h)].
APPENDIX A
Table of outcomes of appeals
Mr Blake’s appeal
Issues on appeal (referring to [182] of the interim judgment)37 Mr Blake Mrs Blake (a) Whether the Family Court erred in
treating the “buy-back” provision in the SCL SHA with John Blake and JBT as giving HML the right to acquire the JBT shares and thus
treating HML as the 100 per cent owner of SCL at 31 March 2018
ü û (b) Whether the Family Court erred in not using the SHA formula (in cl 5.1(v)) to fix the equity value of the SCL shares as between Mr and Mrs Blake in these proceedings. û ü (c) In the alternative, whether the Judge erred when determining that the appropriate multiple for SCL should be 5.5. û û
Mrs Blake was unsuccessful on this point too because she sought a higher multiple.
(d) Whether the Judge erred in respect of SCL by conflating enterprise value with equity value thus overstating the net equity value for 100 per cent of the SCL shares. ü Mrs Blake conceded this point at the hearing.
(e) Whether the Judge erred in failing to adjust the effect of inflation which she had determined and thus incorrectly calculating the relevant increase in the value of HML from
the date of marriage to 31 March 2018.
ü û (f) Whether Judge erred when assessing the parties respective contributions to the increase in value of HML pursuant to s 9A(2) at 60 per cent for Mr Blake and 40 per cent for Mrs
Blake.
û ü (g) Whether the Judge erred in not addressing the request for ü û
37 Interim decision, above n 1, at [182].
compensation by Mr Blake pursuant to s 18B for his post-separation support of Billy Jo. (h) Whether the Family Court erred in holding that the parties had agreed to settle Billy-Jo's costs at $135,000 per year when it was only Mrs Blake who had agreed to pay that sum; Mr Blake did not agree that the s 15 post- separation contributions for Billy-Jo were limited to $135,000 per year. ü Mrs Blake conceded this point at the hearing.
(i) Whether the Family Court erred in holding that Mr and Mrs Blake had both had the benefit of $300,000 which Mrs Blake had applied postseparation, from her separate property funds, towards the restaurant premises fitout. ü Mrs Blake was partially successful on this point in
terms of quantum.
(j) Whether the Family Court erred in vesting the family home in the M Blake Trust pursuant to s 182 of the FPA as a result of failing to take into account relevant matters and taking
account irrelevant matters.
û ü (k) Alternatively, whether the Family Court failed to sufficiently particularise the terms of the first option given to the B Blake Trust. ü û
Mrs Blake’s appeal
Issues on appeal (referring to [183] of the interim judgment)38 Mrs Blake Mr Blake (a) Whether the Family Court erred in calculating the increase in value of the HML shares over the course of the marriage (which turns on the
valuation of two of HML’s subsidiaries, SCL and DRPL, and on the Family Court’s assessment of the value of SCL at the date of marriage).
û û (b) Whether the Family Court erred in dismissing Mrs Blake’s claim under s 9A(1) of the PRA. û ü (c) Whether the Family Court erred in fixing the respective contributions to
the increase in value of HML under s 9A(2) of the PRA at 60 per cent for
ü û
38 Interim decision, above n 1, at [183].
Mr Blake and 40 per cent for Mrs Blake. (d) Whether the Family Court erred in refusing to make orders under s 44 of the Act. ü û (e) Whether the Family Court erred in assessing the quantum of Mrs Blake’s claim under s 15 of the PRA. û ü (f) Whether the Family Court erred in failing to consider Mrs Blake’s claim for interest on the cash adjustment sum payable by Mr Blake to Mrs Blake. ü û
Though, Mr Blake was partially successful in terms of the periods of
interest claimed.
(g) Whether the Family Court erred in failing to vest the restaurant premises in Mrs Blake. û ü
0
5
1