Calian v Cassidy - [2021] NZHC 3413

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-587

[2021] NZHC 3413

BETWEEN
ALEXANDRINA DENISA CALIAN

Applicant

AND

RONALD KELVIN CASSIDY

Respondent

Hearing: 13 August 2021, further submissions received 12 November 2021

Appearances:

J M Greally, K R Smith and M E Gardiner-Rodden for Applicant C LaHatte for Respondent

Date:

13 December 2021

JUDGMENT OF ELLIS J

[1] This judgment follows on from my decision dated 29 May 2020, in which I made a sale order under s 339 of the Property Law Act 2007 (the PLA) in relation to a property co-owned by the applicant and the respondent, situated at 83 Bird Grove, Stokes Valley.1 I did not make orders for the division of proceeds at that time.

[2] Given the matters recorded in my earlier judgment, it is no surprise that the sale process proved to be an attenuated one.

[3] In any event, the property has since been sold. The sale price was $630,352. The proceeds are being held, in accordance with my directions, in the trust account of JAG Legal. The issue now requiring determination is how the proceeds should be divided between the parties, after taking into account various related costs and other matters.

1 Calian v Cassidy [2020] NZHC 1159.

CALIAN v CASSIDY [2021] NZHC 3413 [13 December 2021]

[4] An interim distribution to Ms Calian of $129,830 was ordered immediately after the hearing in August, effectively unopposed, on the basis that she would be entitled to receive at least that amount. I regret the delay in dealing with the remainder.

Background

[5] In order to determine the question of division, and to understand this judgment, it is necessary to set out the rather complex background, both in terms of the property itself and the history of these proceedings.2

The property

[6] The Bird Grove property was acquired by Ms Calian’s former husband, Mr Darrin Cassidy (Darrin) in 1989. It was initially occupied by Darrin and his then partner, a Ms McLoughlin. In 2001, they separated.

[7] Darrin and Ms Calian began a relationship in 2005 and married in late 2006. In 2008, they moved into the property and borrowed money for renovations, which included converting the garage into a two-bedroom flat. In 2009, Darrin’s parents, Ronald and Marie Cassidy moved into the flat. At some point, Darrin and Ms Calian had a child.

[8]Darrin and Ms Calian separated in August 2013.

[9] After her offer to settle relationship property issues for $60,000 was not accepted, Ms Calian commenced Property (Relationships) Act 1976 proceedings against Darrin in March 2014. These were eventually resolved, other than as regards the property.

[10] In 2015 Ronald and Marie commenced proceedings in the District Court against Darrin and Ms Calian. They claimed that Darrin held 78 per cent of the property on either a resulting or a constructive trust for them.3 The basis for the claim

2 Much of what follows is taken from my earlier…

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 Calian v Cassidy

Details

AGLC: Calian v Cassidy [2021] NZHC 3413
Case: [2021] NZHC 3413
Decision Date: 13 December 2021

CaseChat Overview and Summary

In Calian v Cassidy, the High Court of New Zealand dealt with a complex property dispute involving co-ownership and relationship property issues. Alexandrina Calian and Ronald Kelvin Cassidy co-owned a property at 83 Bird Grove, Stokes Valley. The case followed a series of previous proceedings, including family court decisions and a sale order made under the Property Law Act 2007. The central issue in this case was the division of the proceeds from the sale of the property. The sale had been delayed due to various factors, including tenancy issues, the need to rectify the property title, and the capacity of Ronald Cassidy, who had been living in the property. The court had to determine how the proceeds should be divided between Calian and Cassidy, taking into account various costs and other matters. The court found Calian's proposed formula for division to be fair and accepted her calculations, with some adjustments. The final distribution resulted in Calian receiving $166,326.32 and Cassidy receiving $55,503.73.

Orders