Calian v Cassidy - [2020] NZHC 781

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-587

[2020] NZHC 781

BETWEEN
ALEXANDRINA DENISA CALIAN

Applicant

AND

DARRIN HUGH CASSIDY

First Respondent

RONALD KELVIN CASSIDY

Second Respondent

Hearing: 19 March 2020

Appearances:

K R Smith and J M Greally for Applicant First Respondent in Person

C LaHatte (via AVL}

Judgment:

21 April 2020

JUDGMENT OF CLARK J (REASONS)

Introduction

[1] This judgment addresses the question whether Mr Cassidy is precluded by his bankruptcy from appearing in the hearing of Ms Calian’s originating application for orders under the Property Law Act 2007. I will refer to Ms Calian’s application as the “substantive proceeding”. Having heard from Mr Cassidy and counsel, I declined Mr Cassidy’s application to be heard for reasons to be issued in due course. These are my reasons.

CALIAN v CASSIDY [2020] NZHC 781 [21 April 2020]

Overview of the substantive proceeding

[2] Ms Calian and Mr Cassidy were once married. They separated in 2013 and, in 2014, Ms Calian applied to the Family Court for a division of relationship property. It is unnecessary to say much more about what then followed except to record matters concerning the family home at 83 Bird Grove, Stokes Valley, Lower Hutt.

(a)In May 2015 Ms Calian and Mr Cassidy agreed that the “relationship property” portion of the family home would be divided equally between them following determination of a constructive trust claim by Mr Cassidy’s parents, Marie and Ronald Cassidy.

(b)Their agreement was reflected in a High Court Order dated 28 May 2015.

(c)In a reserved decision delivered 2 February 2017, Judge O’Dwyer determined, effectively, the percentage of the property in which Ms Calian and Mr Cassidy were to share equally. Judge O’Dwyer made an order vesting 50 per cent of the family home in the parents. Judge O’Dwyer also made orders recognising the post-separation adjustments that needed to be made and the parents’ liability for mortgage debt. That included orders to the effect that Mr Cassidy was to pay his parents the sum of $77,000 to restore their equity in the property.

(d)A deed of settlement dated 29 December 2017 signed by Mr Cassidy and his parents recorded that Mr Cassidy was unable to raise the
$77,000 and that the parties agreed Mr Cassidy would transfer “all his right title and interest in the property to the Cassidys upon condition that the Cassidys indemnify him against all claims and demands in respect of the mortgage”.

(e)By June 2018 Ms Calian still did not have her entitlement to the family home. Before the Family Court she sought orders that Mr Cassidy pay her an amount representing a quarter share of the value of the property

and occupational rent; or, a vesting order for a half share of the property should…

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 [2020] NZHC 781
Case: [2020] NZHC 781
Decision Date: 21 April 2020

CaseChat Overview and Summary

The High Court of New Zealand was tasked with determining whether Darrin Hugh Cassidy, a bankrupt, could participate in proceedings initiated by Alexandrina Denisa Calian to enforce a property settlement. The substantive proceeding originated from a Family Court decision that divided the relationship property between Calian and Cassidy equally. Despite a prior agreement, Calian did not receive her entitlement, prompting her to seek orders for compensation and a sale of the property. Cassidy, who had since gone into bankruptcy, sought to participate in the proceedings, arguing that his interests were being disregarded. Calian, represented by counsel, argued that Cassidy’s bankruptcy precluded him from defending the claim as his property rights had vested in the Official Assignee.

The court examined whether Cassidy’s bankruptcy barred his participation in the proceedings. It considered the effect of section 101 of the Insolvency Act 2006, which vests all property and rights of a bankrupt in the Official Assignee. The court found that since Cassidy’s property rights had been extinguished by his bankruptcy, he lacked standing to defend the claim. Furthermore, the court noted that Cassidy had not appealed the lower court decisions, which meant the court could only consider the unappealed judgments and orders. The court also dismissed Cassidy’s arguments about bias and alleged assaults by judges, stating these issues were not grounds for him to be heard in the proceedings.

The court concluded that Cassidy’s bankruptcy precluded him from participating in the proceedings. It dismissed his application to be heard, reinforcing that his interests were now vested in the Official Assignee, who had disclaimed any interest in the proceedings. The substantive proceeding would continue without Cassidy’s participation, focusing on Calian’s claims for her share of the property and related compensation.

Orders