DWG v JCF - [2013] NZHC 650

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2012-406-251 [2013] NZHC 650

UNDER the Property (Relationships) Act 1976

IN THE MATTER OF an appeal to the High Court

BETWEEN DWG Appellant

AND JCF
First Respondent

ANDTHE TRUSTEES OF THE DG FAMILY TRUST
Second Respondent

Hearing: 20 February 2013

Counsel: B Fletcher and D P Neild for Appellant
B Millar for First and Second Respondents

Judgment: 27 March 2013

JUDGMENT OF MILLER J

Introduction

[1] DWG appeals from a Family Court judgment1 setting aside his relationship property agreement with JCF for duress and serious injustice and, in consequence, ordering the trustees of DWG’s family trust to transfer the former family home and associated bare land to the parties as joint owners so that it can be divided between
them as if the relationship property agreement had never been signed.2

1 JCF v DWG and Trustees of the DG Family Trust [2012] NZFC 5854.
2 The trustees elected to take no part in the appeal.

DWG V JCF HC BLE CIV-2012-406-251 [27 March 2013]

A brief narrative3

[2] DWG and JCF were born in 1959 and 1963 respectively. They formed a relationship in 1980, and moved in together for a time in 1983. That arrangement became permanent in 1984, when JCF moved into a home at Scotland St, Picton, that DWG had bought using an inheritance and borrowed funds.

[3] Initially the couple sought to keep their finances separate. Accounts were kept recording how much each had contributed to their spending. DWG claims that he never accepted they were a couple and made that clear to JCF.

[4] However, their financial arrangements changed after the first of their two children was born in 1996. DWG closed his personal cheque account and the couple opened a joint account. DWG says that he did this to protect the children in case anything should happen to him. In 2000 they set up a partnership.

[5] In 2000 the couple also took title jointly to the family home, which was situated on a 13-acre property they purchased at Old Renwick Rd, Blenheim. DWG claimed that this was done at the bank’s insistence because JCF’s income was needed to service the mortgage. He says that in practice he made all the payments.

[6] In 2001 DWG sold his Picton property and paid the net proceeds into the joint account. In 2002 JCF opened a separate bank account at DWG’s insistence, and from then on he operated the former joint account alone.

[7] Throughout the relationship DWG monitored their expenditure, keeping ledgers that recorded a running account between them. Sometimes JCF repaid money that she had ‘borrowed’, as when (in 2006) she needed an operation. Nonetheless, the Judge found, DWG and JCF were financially interdependent; both contributed to household running costs, for example, and he supported her when she
was off work, while she put accident compensation payments into the joint account.

3 Based on the appellant’s chronology, which is agreed for these purposes.

[8] In…

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 DWG v JCF

Details

AGLC: DWG v JCF [2013] NZHC 650
Case: [2013] NZHC 650
Decision Date: 27 March 2013

CaseChat Overview and Summary

DWG appeals from a Family Court judgment setting aside his relationship property agreement with JCF for duress and serious injustice, and ordering the trustees of DWG's family trust to transfer the former family home and associated bare land to the parties as joint owners. The appeal challenges the finding that the agreement was seriously unjust, but not the finding that the parties were in a de facto relationship. The appeal is allowed in part, the orders requiring the second respondents to transfer property are set aside, but the appeal against the order setting aside the agreement is dismissed. The proceeding is remitted to the Family Court to formally settle the parties' shares of relationship property.

The court found that the parties were in a de facto relationship for the purposes of the Property (Relationships) Act 1976. The agreement provided that JCF would transfer the two properties to DWG and in return he would by 3 July 2008 pay her $100,000 and assume liability for the mortgage. He would also assume liability for the mortgage and put a portion of the unimproved block equivalent to $300,000 into a trust the discretionary beneficiaries of which would be DWG and the two children. The Family Court judge found that the agreement was seriously unjust and set it aside. The appeal court found that the Family Court judge's conclusion that the parties were in a de facto relationship was correct. The appeal court found that the agreement was seriously unjust and set it aside. The appeal court found that the transfer of $300,000 to DWG's family trust did not compensate for the loss of JCF's entitlements. The appeal court found that the ultimate disparity, $300,000, was very substantial in this couple's circumstances.

Orders