Butcher v Haack - [2012] NZHC 2991

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980 FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2012-488-268 [2012] NZHC 2991

BETWEEN MICHAEL MORLAND BUTCHER Appellant

ANDHEATHER MARY HAACK Respondent

Hearing: 8 October 2012

Counsel: T G Tetitaha for Appellant
J G Ross for Respondent

Judgment: 12 November 2012

JUDGMENT OF HEATH J

This judgment was delivered by me on 12 November 2012 at 4.30pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Tumanako Law, PO Box 697, Kerikeri SwanLaw, PO Box 1563, Whangarei Counsel:
J G Ross, PO Box 1475, Whangarei

BUTCHER V HAACK HC WHA CIV 2012-488-268 [12 November 2012]

The appeal

[1] Mr Butcher appeals against a judgment given by Judge Lindsay, in the Family Court at Whangarei, on 4 April 2012.1 The judgment was given in relationship property proceedings that followed Mr Butcher’s and Ms Haack’s separation.

[2] A number of issues were resolved following a settlement conference held on

24 November 2010. Consent orders vested possession and ownership of properties situated at 51 Tahuna Road, Paihia and 47 Tahuna Road, in Ms Haack and Mr Butcher, respectively. Three issues were reserved for further decision of the Family Court:

(a) Occupation rent. (b) Superannuation.

A third, whether a further sum of $1000 was payable to Mr Butcher as a post separation adjustment to bank accounts, was not pursued.

[3] Judge Lindsay resolved both points in favour of Ms Haack. On appeal, Ms

Tetitaha, for Mr Butcher, raises three substantive issues:

(a) Did Judge Lindsay err in finding that an oral agreement reached in April 2000, to the effect that Ms Haack was entitled to a one half share of Mr Butcher’s superannuation entitlement?

(b)If an agreement were reached, should it be given effect, notwithstanding non-compliance with s 21F of the Property
(Relationships) Act 19762 (the Act)?

1 Haack v Butcher [2012] NZFC 1752.
2 Set out at para [30] below.

(c) Did Judge Lindsay err in holding that Ms Haack was entitled to compensation for occupation rent for a period during which Mr Butcher occupied the family home, after separation?

Background

[4] Mr Butcher and Ms Haack were married on 18 December 1993. Each had brought assets from an earlier relationship. They acquired a family home in Hamilton. Ms Haack contributed approximately $180,000 and Mr Butcher $80,000. Those amounts reflected the equity that each had in the properties they owned at the time of marriage.

[5] In 1996, Mr Butcher and Ms Haack sold their Hamilton property and purchased one at 47 Tahuna Road, Paihia. The equity from the Hamilton property was used for this purchase, together with an unsecured loan from Mr Butcher’s step- mother, in the sum of $100,000. The property was registered in both of their names. Mr Butcher and Ms Haack lived together at that property until they…

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 Butcher v Haack

Details

AGLC: Butcher v Haack [2012] NZHC 2991
Case: [2012] NZHC 2991
Decision Date: 12 November 2012

CaseChat Overview and Summary

In the case of Butcher v Haack, Michael Morland Butcher appeals against a judgment given by Judge Lindsay in the Family Court at Whangarei, on 4 April 2012. The judgment was in relationship property proceedings that followed Mr Butcher's and Ms Haack's separation. The appeal concerns the enforcement of an oral agreement regarding superannuation and the award of occupation rent.

The first issue is whether Judge Lindsay erred in finding that an oral agreement was reached in April 2000, to the effect that Ms Haack was entitled to a one-half share of Mr Butcher's superannuation entitlement. The court found that an oral agreement had been entered into on the basis for which Ms Haack had contended. The second issue is if an agreement were reached, should it be given effect, notwithstanding non-compliance with s 21F of the Property (Relationships) Act 1976. The court held that the oral agreement did not comply with s 21F, but it could be saved by s 21H. The third issue is whether Judge Lindsay erred in holding that Ms Haack was entitled to compensation for occupation rent for a period during which Mr Butcher occupied the family home after separation.

The court upheld the Judge's decision to award an occupation rent, for the reasons that she gave. The amount payable by Mr Butcher to Ms Haack for occupation rent is calculated at $13,262.50. The order that interest run on amounts payable, from 24 November 2011 remains extant. Costs on appeal are ordered in favour of Ms Haack on a 2B basis, together with reasonable disbursements, both to be fixed by the Registrar. Costs shall lie where they fall, in the Family Court. The appeal is dismissed.

Orders