Booth v Booth - [2019] NZHC 2424

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-949

[2019] NZHC 2424

BETWEEN
TANIA BOOTH

Plaintiff

AND

JASON BOOTH

First defendant

RAY CHARLES BOOTH
Second defendant

ANN BOOTH

Third defendant

Hearing: 12 August 2019

Appearances:

J Delany for plaintiff/respondent

J Maassen for first defendant/applicant
A Isac QC and G Richards for second and third defendants/applicants

Judgment:

25 September 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

TABLE OF CONTENTS

Introduction  1
Background  3
Proceedings  11
Matters for determination  21
The plaintiff’s claim  23
BOOTH v BOOTH [2019] NZHC 2424 [25 September 2019]

The first defendant’s application for summary judgment 31

Summary judgment principles 31

Section 182(1) of the Family Proceedings Act 34

A nuptial settlement – Jason’s case 37

A nuptial settlement – Tania’s case 47

A nuptial settlement – existence of a settlement 52

A nuptial settlement – nuptial character 58

The Court’s discretion 61

The second and third defendant’s application for an order dismissing the claim 75

Result 79

Costs 81

Introduction

[1] At the heart of this case is an issue as to the scope of s 182(1) of the Family Proceedings Act 1980.

[2] Before addressing that issue, it is necessary first to describe the factual background and the procedural path that this and two related proceedings have taken to date.

Background

[3] The Booth family have been farming at Opiki, just south of Palmerston North, for three generations. By 2011 Mr Ray Booth (Mr Booth) and Mrs Ann Booth (Mrs Booth), the second generation of the family on the farm and the second and third defendants, were considering their future. They had concluded that it was time to hand over the farm to the next generation and retire. They contemplated doing so in Taupo. Mr and Mrs Booth have two children, Mr Jason Booth (Jason), the first defendant, and a daughter who does not feature in this litigation. Of the two, it was Jason who was interested in carrying on the family farming business. At this time, Jason was married to Mrs Tania Booth (Tania), the plaintiff. Jason and Tania were living on the farm with their own family, and already heavily involved in its operation.

[4] No doubt following discussions over some time, the family decided to embark upon a restructuring of its farming business. The overarching objective of this restructuring was the handing over of the farm from one generation to the next.

[5] With that objective in mind, the family sought advice from a Manawatu firm of solicitors then known as Wadham Goodman, and in particular the senior commercial partner, Mr Mark Wadham, and the accountant who provided the farming business with accounting services, Mr Peter Savage. It appears to have been agreed from an early stage that Mr Wadham would act for Mr and Mrs Booth in relation to the restructuring, and another partner in the firm, Mrs Melanie Sargent, also a senior commercial practitioner, would act for Jason and Tania. Provided of…

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 [2019] NZHC 2424
Case: [2019] NZHC 2424
Decision Date: 25 September 2019

CaseChat Overview and Summary

In Booth v Booth, Tania Booth sought an order under s 182(1) of the Family Proceedings Act 1980 in relation to a debt owed by the farming company she and her ex-husband, Jason Booth, had set up. Tania's claim arose out of the family's restructuring of its farming business. Tania claimed that, as part of that restructuring, it was agreed that, so long as Jason and Tania stayed together, Mr Booth would not demand repayment of the debt, and would ultimately forgive it, either during his lifetime or by will, with the result that Jason and Tania would benefit by the amount of the debt via the corresponding increase in the value of the shares in the company. Tania argued that she stood to be deprived of half of that value as a result of Jason and Tania's separation and the dissolution of their marriage. Tania's claim was dismissed. Tania had failed to establish that there was a nuptial settlement within the meaning of s 182(1) of the Family Proceedings Act 1980. Even if there were, Tania had failed to establish that the court should exercise its discretion under s 182(1) of the Family Proceedings Act 1980 in her favour.

Orders