UNDER the Property (Relationships) Act 1976

BETWEEN

PETER BURMESTER

Appellant

AND

BEVERLEY JOY BURMESTER First Respondent

ANNELIESE BURMESTER SARAH BURMESTER

Second Respondents

Hearing: 11 October 2017

Counsel:

Appellant in person
D Chambers QC for first respondent

Judgment:

2 February 2018

JUDGMENT OF KATZ J

This judgment was delivered by me on 2 February 2018 at 3:30pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Dyer Whitechurch, Auckland
Counsel:            D Chambers QC, Bankside Chambers, Auckland
Copy to:            P Burmester (Appellant)

BURMESTER v BURMESTER [2018] NZHC 47 [2 February 2018]

Table of Contents

Introduction ............................................................................................................................[1] Background .............................................................................................................................[4] Approach and issues on appeal............................................................................................[10] The application of German law ...........................................................................................[17]
Issue One: Did the Judge err in classifying the JFC Account as relationship
property? ...............................................................................................................................[24]

Background [24] Family Court findings [27] Does the claimed trust fail for want of certainty? [30] If the claimed trust exists, would s 8(1)(ee) apply to it? [33] Was Mrs Burmester’s interest in the JFC Account held on trust for Mr Burmester? [37] Conclusion [53]

Issue Two: Did the Judge err by ordering that spousal maintenance continue
up until the date of distribution?.........................................................................................[54]

Background [55] Argument on appeal [57] Did Judge Burns err in extending the spousal maintenance order? [59] Conclusion [61]

Issue Three: Did the Judge err by ordering that the costs of counsel to assist
be reimbursed from Mr Burmester’s half-share of the ANZ Account? ...........................[62]

Issue Four: Did the Judge err by ordering that all adjustments arising from
the judgment be made from the ANZ Account? ................................................................[65]

Issue Five: Did the Judge err by ordering the remaining proceeds from the
sale of the family home to be Mrs Burmester’s sole property? ........................................[67]

Issue Six: Did the Judge err by accepting the value at which the German
motor vehicles were sold?.....................................................................................................[71]

Issue Seven: Did the Judge err by finding that the loan to Mr Jacobs is
relationship property? ........................................................................................................... 77]

Issue Eight: Did the Judge err by exercising jurisdiction over the partnership
and declaring that Mrs Burmester’s interest in it is relationship property?...................[84]

Issue Nine: Did the Judge err by ordering that the proceeds of the German
litigation are relationship property and vesting those proceeds in Mr Burmester? .......[97]

Issue Ten: Did the Judge err by dismissing Mr Burmester’s s 13 argument?...............[100] Section 13 – legal principles [105] Discussion [110]
Issue Eleven: Did the Judge err in his calculations of maintenance and ordering that maintenance be deducted from Mr Burmester’s share of the ANZ bank account? .....[114]

Issue Twelve: Did the Judge err by granting Mrs Burmester costs? .............................[115] Issue Thirteen: Mrs Burmester’s cross appeal and leave application............................[116] Deduction of costs from the joint bank account [120] Issues relating to the partnership [125] Summary and conclusion ...................................................................................................[130] Result ...................................................................................................................................[142]

Introduction

[1] Peter and Beverley Burmester separated on 29 June 2011, following an almost 21-year…

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 Burmester v Burmester

Details

AGLC: Burmester v Burmester [2018] NZHC 47
Case: [2018] NZHC 47
Decision Date: 2 February 2018

CaseChat Overview and Summary

The appeal was brought by Mr Burmester and the cross-appeal by Mrs Burmester. The appeal related to a number of issues arising from the Family Court’s substantive judgment in relationship property proceedings between the parties. The cross-appeal sought orders broadly aimed at facilitating enforcement of the Family Court’s substantive orders. The appeal was dismissed and the cross-appeal succeeded in part. The Judge found no error in the Family Court’s classification of the funds in the ANZ Account (which represented the proceeds of the JFC Account) as relationship property. The appeal against the Family Court’s decision to order that spousal maintenance continue up until the date of distribution was dismissed. The appeal against the Family Court’s decision to order that the costs of counsel to assist be reimbursed from Mr Burmester’s half-share of the ANZ Account was dismissed. The appeal against the Family Court’s decision to order that all adjustments arising from the judgment be made from the ANZ Account was dismissed. The appeal against the Family Court’s decision to order the remaining proceeds from the sale of the family home to be Mrs Burmester’s sole property was dismissed. The appeal against the Family Court’s decision to accept the value at which the German motor vehicles were sold was dismissed. The appeal against the Family Court’s decision to find that the loan to Mr Jacobs is relationship property was dismissed. The appeal against the Family Court’s decision to exercise jurisdiction over the partnership and declare that Mrs Burmester’s interest in it is relationship property was dismissed. The appeal against the Family Court’s decision to order that the proceeds of the German litigation are relationship property and vesting those proceeds in Mr Burmester was dismissed. The appeal against the Family Court’s decision to dismiss Mr Burmester’s s 13 argument was dismissed. The cross-appeal succeeded in part, in that any costs awards that have been made in connection with the relationship property proceedings up to the date of this judgment should be paid by way of deduction from Mr Burmester’s half-share of the ANZ Account. The cross-appeal also succeeded in that Anneliese Burmester and Sarah Burmester are to appoint Mrs Burmester as the sole agent for the partnership, both in regard to the operation of the ABS Partnership bank account and in regard to dealing with all authorities in Germany.

Orders