Cullen v Cullen - [2017] NZHC 42

NOTE: PURSUANT TO S 35A OF THE RPOPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.
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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2015-441-97 [2017] NZHC 42

BETWEEN
BRIAN CULLEN

Appellant

AND

CAROL ILEEN CULLEN Respondent

Hearing: 15 March 2016

Appearances:

G R J Thornton for Appellant
M E M Macfarlane for Respondent

Judgment:

23 December 2016

Reasons:

27 January 2017

REASONS FOR JUDGMENT OF CLARK J

Table of Contents

Background [2] Family Court decision and appeal [8] Principles governing appeal [11] Overview [13] Date of Valuation [19] Inheritance [34] Section 18B claims [44] Damage to fishing boat [49] Contributions to household payments [57] Funds introduced to Cray 3 Ltd [60] Wife’s liability for relationship property debt [62] Treatment of husband’s contracting income [72] Section 18C claim [79] Did the Judge err in ordering the appellant to pay compensation for damaged locks? [87] Result [91]

CULLEN v CULLEN [2017] NZHC 42 [27 January 2017]

[1] On 23 December 2016 I issued a results judgment with reasons to follow. These are the reasons for dismissing the appeal against Judge Lendrum’s determination of the property relationship interests and entitlements of Brian Cullen and Carol Cullen.1

Background

[2] The parties married in 1972. They separated on 20 March 2011.

[3] In 1985 they formed the B & C Cullen Partnership as a vehicle for their crayfishing activities. In 2010 the business was incorporated as Cray 3 Ltd. From the date of separation Mr Cullen took control of Cray 3 Ltd and operated it to the exclusion of Ms Cullen.

[4] Approximately one month before separating the couple settled a trust and the family home at Mahia was transferred to the trust. For almost two years from the date of separation Mr and Ms Cullen continued to share “most unhappily”2 a joint occupation of the family home. In fact, by the end of 2013, the relationship had become so difficult the Police became involved and Ms Cullen had little option but to leave the family home. She has subsequently lived in a caravan park while
Mr Cullen and his new partner occupy the home.

[5] In May 2012 Mr Cullen had filed an on notice application for relationship property orders. In the main he sought orders classifying certain assets as relationship or separate property and fixing the interests of the parties in the assets classified as relationship property. He also sought orders providing for certain items of relationship property to be transferred to and vested in each of the parties as their sole and separate property.

[6] In November 2013 the Family Court made orders and directions relating to the family home including that the home be transferred from the trust to the parties
as tenants in common with equal shares.

1 Cullen v Cullen [2015] NZFC 6270.

[7] Issues concerning the quantum to be paid to Ms Cullen on the transfer or…

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 Cullen v Cullen

Details

AGLC: Cullen v Cullen [2017] NZHC 42
Case: [2017] NZHC 42
Decision Date: 23 December 2016

CaseChat Overview and Summary

In the case of Cullen v Cullen, the appeal was dismissed by Clark J in the High Court of New Zealand. The dispute between Brian Cullen and Carol Cullen primarily concerned the valuation and classification of their relationship property, specifically their crayfishing business, Cray 3 Ltd, and their family home. The appeal addressed several issues, including the valuation date of the business's assets, the classification of an inheritance as separate or relationship property, compensation claims under sections 18B and 18C of the Property (Relationships) Act 1976, and a claim for damages to the family home. Clark J found that the Family Court judge had not erred in his assessment of the evidence or in applying the relevant legal principles, and thus upheld the original decision. Clark J emphasised the importance of the Family Court judge's firsthand observation of the witnesses and the difficulty of overturning such findings on appeal. Consequently, the appeal was dismissed, and the respondent was entitled to costs.

Orders