Da Silva v Da Silva - [2016] NZHC 2064

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2014-470-193 [2016] NZHC 2064

BETWEEN
DAVID ANTHONY DA SILVA

Plaintiff

AND

DENISE ANDREA DA SILVA First Defendant

SPICERS ROTORUA TRUSTEE COMPANY LIMITED, HAMERTONS TRUSTEE SERVICES LIMITED and DENISE ANDREA DA SILVA as trustees of the DUZUS FAMILY TRUST

Second Defendants

AWAKERI HOLDINGS LIMITED Third Defendant

Hearing: 18 - 22 and 29 April 2016

Appearances:

H A Cull QC and A C Evetts for Plaintiff

A H Brown and P M McMeeken for First and Third Defendants K G Davenport QC, C V Walsh and AAM Kershaw for Second Defendants

Judgment:

1 September 2016

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 1 September 2016 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

DA SILVA v DA SILVA [2016] NZHC 2064 [1 September 2016]

[1] This judgment determines disputes between the Plaintiff, Mr da Silva, and each of the Defendants.

[2] Mr da Silva and the First Defendant, Mrs da Silva, were married for more than 25 years. They separated in 2012 and their marriage was dissolved in 2014.

[3] The Second Defendants are the trustees of the Duzus Family Trust (“trustees” and “trust”).1 The trust was settled by Mrs da Silva’s mother, Mrs Julienne Perris, in September 2000. Mrs da Silva and the five (now adult) children (“children”) of Mr and Mrs da Silva’s marriage are beneficiaries of the trust, as was Mrs Perris until her death in 2004. Mr da Silva is not and never has been a beneficiary.

[4] The trust’s sole asset of consequence is the shares in the Third Defendant

(“AHL”). AHL’s principal asset is commercial property in the Bay of Plenty.

[5] Mr da Silva pleads five causes of action in which he seeks the following:

(a) orders specifying his share in his and Mrs da Silva’s relationship property; specifying his share in the value of property held by the trustees and AHL (he seeks a 50 per cent share); and determining claims for adjustment and compensation pursuant to ss 8(e) and (ee),
9A, 10, 15, 15A and 18 and/or ss 17, 44, 44C and 44D Property

(Relationships) Act 1976 (“PRA”);

(b) relief pursuant to s 182 Family Proceedings Act 1980 (“FPA”) on the

basis the trust is a “post-nuptial settlement”;

(c) an order, essentially a declaration, that the trustees hold their assets, including the shares in AHL, on constructive trust as to a 50 per cent share for Mr da Silva;

(d)equitable estoppel, on the basis of representations said to have been made by Mrs Perris to Mr da Silva and his reliance thereon; and

1 “Duzus” as in “Does Us”.

(e) unjust enrichment/unconscionability.

Background

[6] Mr and Mrs da Silva lived in a de facto relationship from 1986, were married in May 1988, separated in May 2012 and their marriage was dissolved in July 2014. Together they were/are directors and shareholders of David da Silva Automotive Services Limited (“DASL”). Mr da Silva…

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 Da Silva v Da Silva

Details

AGLC: Da Silva v Da Silva [2016] NZHC 2064
Case: [2016] NZHC 2064
Decision Date: 1 September 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Da Silva v Da Silva was heard and determined by Justice Peters. The plaintiff, Mr. David Anthony Da Silva, sought relief from the court against the first defendant, his ex-wife Mrs. Denise Andrea Da Silva, and other defendants related to the Duzus Family Trust. The main issues in the case involved the division of property acquired during the marriage, the characterization of the Duzus Family Trust as a post-nuptial settlement, and the claim of constructive trust, equitable estoppel, and unjust enrichment.

The court ruled that the loss incurred on the rental property was relationship debt, and the value of the shares in David da Silva Automotive Services Limited was $68,000. The parties were required to bear an equal share of all outgoings on the rental property and the family home, and Mr. da Silva was required to pay rent for the period he had occupied the family home.

The court found that Mrs. da Silva's interest in the Duzus Family Trust was not "property" within the meaning of the Property (Relationships) Act 1976, and thus the provisions of the Act did not apply. The court also found that the Duzus Family Trust was not a post-nuptial settlement for the purposes of the Family Proceedings Act 1980, and the claim for constructive trust, equitable estoppel, and unjust enrichment also failed.

In conclusion, all claims by Mr. da Silva, except for the division of relationship debt and the value of the shares in David da Silva Automotive Services Limited, were dismissed. The court made no order as to costs pending receipt of submissions, if the parties were unable to agree.

Orders