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Blake v Blake

Blake v Blake

Case [2021] NZHC 2583 1 October 2021

Breach of Contract

Unconscionable Conduct

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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

[2021] NZHC 2583

BETWEEN
BARTLEY BLAKE

Applicant

AND

MAYSIE BLAKE

First Respondent

HMR LIMITED

Second Respondent

Hearing: 16 July and 16 September (via VMR) 2021

Counsel:

J Billington QC and K Lellman for Applicant

D Chambers QC and E Armstrong for First Respondent

Judgment:

1 October 2021

Reissued:

8 October 2021

ANONYMISED JUDGMENT OF WHATA J

Re leave to appeal

This judgment was delivered by me on 1 October 2021 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Tompkins Wake, Tauranga

LeeSalmonLong, Auckland

BLAKE v BLAKE [2021] NZHC 2583 [1 October 2021]

[1] The parties seek leave to appeal my interim judgment of 12 April 2021, determining an appeal from the Family Court concerning claims under the Property (Relationships) Act 1976 (PRA).1 The applications for leave engage three findings. First, I assumed that Mr Blake held a 100 per cent shareholding in a company, SC Limited (SCL), valued at $23.7 m. This percentage shareholding and valuation are not accepted by Mr Blake. Second, under s 9A(2) of the PRA, I found that Mr and Mrs Blake should share relationship property valued at approximately $110 m equally. Mr Blake maintains he is entitled to at least 60 per cent of that relationship property value. Third, I refused to vest land held by an asset holding company in Mrs Blake. She insists that she should have this property.

Background

[2] The background and my reasons are set out in my interim judgment and my final judgment. It is not necessary to repeat that detail here. The following provides the relevant context for the proposed appeal issues.

Share valuation

[3] The most significant property interests comprise shares in HMR Limited (HML) and a subsidiary of that company, SCL, together with personal assets. Complicating matters, just over three months prior to separation, Mr Blake entered into a shareholding agreement with his son John (the SHA) to enable the sale of the shares in SCL to the John Blake Trust (JBT). Prior to the date of relationship property valuation, 8.4 per cent of the shares were sold to the JBT in accordance with the formula set out in the SHA. Referring to Regal Castings v Lightbody, I found that Mr Blake intended to defeat Mrs Blake relationship property claim in respect of the value of those shares and that the consideration paid by the JBT for them was inadequate.2 However, rather than require the JBT to pay compensation (as John, through the JBT, had altered his position in good faith and for valuable consideration), I considered the

1 [Blake] v [Blake] [2020] NZFC 212 [Family Court judgment]; and [Blake] v [Blake] [2021] NZHC 756 [Interim judgment]. I issued final judgment on 1 October 2021: [Blake] v [Blake] [2021] NZHC 2590 [Final judgment].
2 Interim judgment, above n 1, at [143] citing Regal Castings v Lightbody [2008]…

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 Blake v Blake

Details

AGLC: Blake v Blake [2021] NZHC 2583
Case: [2021] NZHC 2583
Decision Date: 1 October 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Bartley Blake applied for leave to appeal the decision of Whata J, which determined an appeal from the Family Court concerning claims under the Property (Relationships) Act 1976 (PRA). The appeal related to three findings. Firstly, the Court had assumed that Bartley Blake held a 100 per cent shareholding in a company, SC Limited, valued at $23.7 m, which Bartley Blake disputed. Secondly, the Court found that Bartley and Maysie Blake should share relationship property valued at approximately $110 m equally, which Bartley Blake claimed he was entitled to at least 60 per cent of that value. Thirdly, the Court had refused to vest land held by an asset holding company in Maysie Blake, which she insisted she should have. The issues raised by the proposed grounds of appeal were whether the Court should have used the shareholding agreement formula to fix the share value for SCL, whether the Court misapplied Regal Castings v Lightbody in finding that Bartley Blake had the requisite intention to defeat Maysie Blake's relationship property claim, whether the Court was wrong to find that the John Blake Trust did not pay "adequate" consideration for the shares, and whether the Court was wrong to grant relief under sections 18C or 25 of the PRA and to disturb the Family Court's distribution under section 9A(2) of the PRA. The Court declined to grant leave to appeal on issues relating to the share valuation and transfer and the application of section 9A(2) division. However, leave to appeal was granted on two issues: whether the Court was wrong to have regard to the key person discount as part of the section 9A(2) evaluation, and whether Bartley Blake's pre-marriage contribution of skills and attributes justified a 20 per cent differential in the relationship property division under section 9A(2). The Court declined both Bartley and Maysie Blake's applications for leave to appeal in respect of the other issues listed. Costs on the leave applications were to lie where they fell.

Orders