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Booth v Booth

Booth v Booth

Case [2020] NZCA 451 25 September 2020

Contract Formation

Unconscionable Conduct

Fiduciary Duty

Family Property

Post-Nuptial Settlement

Discretionary Variation

Family Court Jurisdiction

Family Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA529/2019
[2020] NZCA 451

BETWEEN	TANIA BOOTH Appellant
AND	JASON BOOTH First Respondent RAY CHARLES BOOTH Second Respondent ANN BOOTH Third Respondent

Hearing:	16 June 2020, further submissions received on 30 June 2020
Court:	Goddard, Ellis and Katz JJ
Counsel:	J J Delany for Appellant J W Maassen for First Respondent A N Isac QC and G M Richards for Second and Third Respondents
Judgment:	25 September 2020 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Ray and Ann Booth are embroiled in what is essentially a relationship property dispute between their son, Jason, and his former wife, Tania.[1] The aspect of that dispute presently at issue is Tania’s claim under s 182(1) of the Family Proceedings Act 1980 (the FPA) that there was a post-nuptial settlement by which Ray effectively made available to Jason and Tania some $1.5 million. That claim was the subject of successful applications for summary judgment (by Jason) and for strike-out (by Ray and Ann) in the High Court.[2] Tania now appeals.

Background

[1]Because all the parties have the same surname, we will refer to them by their first names.

[2]Booth v Booth [2019] NZHC 2424, [2019] NZFLR 225 [High Court judgment].

In 1998, Ray and Jason formed Booths Farming Ltd (BFL), a company that bought and sold farmland. In 2001 Ray formed an operational company through which he ran the family farming business. This company became Booth Agriculture Ltd. An asset of the wider farming enterprise was farmland situated at Poplar Road, Opiki, owned by Ray personally.
Jason and Tania married in 2001. The couple then moved onto the Opiki farm property. Jason and Tania were both heavily involved in farming the property.[3] They had three children there together.
[3]Ray and Ann also have a daughter, but she is not involved in the farming operations.
In 2011, the family agreed to a generational handover of the farming operation. They settled on a restructuring plan proposed by Peter Savage, an accountant instructed by the Booths. The corporate entities were reorganised and the farming business (including, in particular, the Opiki farm) was sold to a company incorporated by Jason and Tania for that purpose: Poplar Road Farms Ltd (PRF). Jason and Tania are 50:50 shareholders in PRF.
The reorganisation left the balance of the Opiki farm purchase price as a debt owing by PRF to Ray. This debt was recorded in a deed dated 1 November 2011 (the Deed) and signed by both Tania and Jason, as directors of PRF. In the Deed, PRF was described as the “Debtor” and Ray was referred to as the “Creditor”. Recital A recorded that Ray had advanced $1,150,251.99 to PRF. Recital B recorded that he had done so to help PRF to purchase the farm. The operative provisions were as follows:
1. THAT the said sum of $1,150,251.99 has been advanced…

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 Booth v Booth

Details

AGLC: Booth v Booth [2020] NZCA 451
Case: [2020] NZCA 451
Decision Date: 25 September 2020 at 3.00 pm

CaseChat Overview and Summary

In Booth v Booth, Tania Booth appealed against the Associate Judge’s decision to grant summary judgment to Jason Booth and to strike out her claim under s 182 of the Family Proceedings Act 1980. Tania’s claim was that there had been a post-nuptial settlement by which Ray Booth effectively made available to Jason and Tania some $1.5 million. The appeal was dismissed. Tania’s claim was that there was an expectation that the debt owed under a deed would not be repaid, based on her understanding that the loan was to be gifted and that Ray did not require it to be repaid. Tania sought an order under s 182 of the FPA to remedy the alleged unfairness resulting from the divorce. The court found that the arrangements did not involve the settlement of property on Jason, Tania, Poplar Road Farms Ltd or anyone else. Nor was there any ongoing provision for any person under a legally binding arrangement, the terms of which could be varied by the Court under s 182 to remedy an injustice that giving effect to those terms would otherwise produce. The court found that it was not seriously arguable that there was a nuptial settlement here.

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