BLD v ALD - [2014] NZHC 579

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004549 [2014] NZHC 579

BETWEEN BLD Appellant

AND

ALD Respondent

Hearing: 18 March 2014

Appearances:

L J Kearns for Appellant

Respondent Appeared In Person with Mr G Croy (support person)

Judgment:

26 March 2014

JUDGMENT OF GENDALL J

(Note: This judgment was recalled and reissued on 17 February 2015. See minute of Gendall J dated 17 February 2015.)

Introduction

[1] This is an appeal relating to proceedings under the Property (Relationships) Act 1976 (the Act). The appeal is against part of a judgment in the Family Court at Auckland delivered by His Honour Judge D A Burns on 24 September 2013.

[2] Also at issue here is an application by the respondent for leave to bring a cross-appeal against that Family Court judgment.

Background

[3] The appellant and the respondent were married on 29 September 1984 and separated on 1 May 2007. There are no children of their relationship.

BLD v ALD [2014] NZHC 579 [26 March 2014]

[4] At the time of separation the parties and their various entities it seems had the following assets:

(a) The former family home at 25 Siota Crescent, Kohimarama, Auckland (the home), which was owned by the trustees of the BL and AL D Trust. The trustees were the two parties and an independent solicitor;

(b) Family chattels;

(c) A Reflections 980 Sport Fisher motor launch “Ms B Haven” (the

launch);

(d) Bank accounts;

(e) Public company shares;

(f) Shares in a number of companies including Spot X Cape to Cape Limited, Spot X Fishing Forecast Limited, Spot X Fishing Guide Limited and C.Swish Agencies;

(g) Loans advanced to the respondent’s business trading as Extend

Marketing Limited;

[5] Shortly prior to the June 2013 hearing in the Family Court, the respondent filed an application under s 182 Family Proceedings Act 1980. As I understand it those proceedings for which a notice of defence has been filed still need to be progressed in the Family Court.

[6] So far as the parties’ former home is concerned, this has now been sold following certain legal difficulties which arose with neighbours. Costs and other orders were made against the appellant and the respondent following High Court litigation over these difficulties and a forced sale of the property ensued. As a result, significantly reduced net sale proceeds (of about $117,000) are now held in a solicitor’s trust account for the parties.

[7] Resolution of some property dispute matters between the parties has occurred. The remaining matters which were still outstanding however (most of which were before the Family Court) related essentially to the following:

(a) The launch and its value;

(b)A claim for occupation rental for the home which originally had been ordered by the Family Court to be paid by the appellant;

(c) The loan/s made to Extend Marketing Limited;

(d)An issue concerning costs of $750 ordered to be paid by the respondent by Judge McHardy in the Family Court on 24 August
2012;

(e) A question…

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 BLD v ALD

Details

AGLC: BLD v ALD [2014] NZHC 579
Case: [2014] NZHC 579
Decision Date: 26 March 2014

CaseChat Overview and Summary

This appeal involves a property dispute between BLD and ALD, formerly married couples who separated in May 2007. The appeal, governed by section 39 of the Property (Relationships) Act 1976, is by way of rehearing. The appellant raises issues concerning the valuation and value of a motor launch, the respondent’s conduct under section 18C of the Act, and other claims for adjustment payments and costs. The respondent filed a cross-appeal, alleging that the Family Court erred in failing to include and value the appellant’s business interests. The court dismissed the appellant’s appeal relating to the motor launch value, as well as his claims concerning the respondent’s conduct and the alleged loans to Extend Marketing Limited. However, the court found that the respondent should pay the appellant a $5000 chattels adjustment and that the $750 costs order against the respondent remains unpaid. The court also dismissed the respondent’s cross-appeal, finding that she had sufficient opportunities to seek information concerning the appellant’s business interests. The court awarded costs to the appellant on his successful opposition to the respondent’s cross-appeal.

Orders