Findlay v Findlay - [2017] NZHC 2797

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2014-409-780 [2017] NZHC 2797

UNDER The Property (Relationships) Act 1976

AND

The Family Proceedings Act 1980 and
The Trustee Act 1956

BETWEEN

ANNE-MARIE FINDLAY Plaintiff

AND

SCOTT ANDREW FINDLAY First Defendant

SCOTT ANDREW FINDLAY and H P HANNA & CO TRUSTEES LIMITED as Trustees of the Scott Findlay Family Trust Second Defendants

SCOTT ANDREW FINDLAY and H P HANNA & CO TRUSTEES LIMITED as Trustees of the W.N.H.A. Trust

Third Defendants

SCOTT ANDREW FINDLAY and H P HANNA & CO TRUSTEES LIMITED as Trustees of the J.K.S.T. Trust

Fourth Defendants

Hearing: 27 and 28 February and 1 March 2017

FINDLAY v FINDLAY [2017] NZHC 2797 [15 November 2017]

Appearances:
A M Corry and T D Holton for Plaintiff

D M Lester and B J Callaghan for Defendants

Judgment:

15 November 2017

INTERIM JUDGMENT OF NICHOLAS DAVIDSON J

INDEX

Abbreviations

A.

B.

INTRODUCTION ……………………………………………

PLEADING ………………………………………………….

[1]

[6]

SFF Trust ……………………………………………………...

WNHA Trust …………………………………………………... SFB(2012) …………………………………………………….. Summary of claims by Mrs Findlay ………………………….. Statement of defence ………………………………………….

[18]

[21] [22] [26] [27]

C.

ISSUES ……………………………………………………… At separation ………………………………………………… Post separation ……………………………………………… Corporate and trust structuring post separation ……………. Mrs Findlay’s perspective of her contribution ………………. Value of SFB / SFB(2012) …………………………………… Mr Findlay’s perspective of the value of SFB and his personal

[28] [29] [39] [43] [53] [63]

Discussion about valuation evidence…………………………
The legal status of the company and trust arrangements post

Separation ………………………………………………...

[84]

[91]

Mr Hanna and Mr Findlay ………………………………….. [95]

D.

RELATIONSHIP PROPERTY …………………………… Mrs Findlay’s powers under the trust deed as “property” …. Conclusion ……………………………………………………

[100] [103] [105]

E.

BREACH OF TRUST ………………………………………
Conclusion ……………………………………………………

[106] [114]

goodwill……………………………………………..…….. [83]

F.
FURTHER BREACH OF TRUST …………………………

Conclusion ……………………………………………………
[115] [121]

G.

CLAIMS RELATING TO EXERCISE OF POWER

Conclusion ……………………………………………………
[126]

H.

SPOUSAL MAINTENANCE ………………………………
Conclusion …………………………………………………….

[127] [130]

I.

SECTION 182 FAMILY PROCEEDINGS ACT ………….
Conclusion ……………………………………………………

[131] [136]

J.

CONSTRUCTIVE TRUST ………..……………………….. Reasons for a constructive trust to be upheld ………………… Conclusion …………………………………………………….

[138] [153] [171]

K.

DISPOSITION ………………………………………………

[181]

TO REMOVE BENEFICIARY ………………………. [122]

ABBREVIATIONS

Ability Ltd Ability Builders Limited

ASOC Amended Statement of Claim

Chateau Drive 34 Chateau Drive

DCF Discounted Cash Flow

EQC Earthquake Commission

FCL Findlay Construction Limited

FPA Family Proceedings Act 1980

GFC Global Financial Crisis

HPH H P Hanna & Co. Trustees Limited

JKST Trust J.K.S.T. Trust

PRA Property (Relationships Act) 1976

Racecourse Holdings Racecourse Holdings Limited

SFB Scott Findlay Builders Limited

SFB2012 Scott Findlay Builders (2012) Limited

SFF Trust Scott Findlay Family Trust

SFT2000 Scott Findlay Trust 2000

Trustee Act Trustee Act 1956

WNHA Trust W.N.H.A. Trust

A. INTRODUCTION

[1] Mr and Mrs Findlay married on 17 April 1993 and separated in July 2010. They…

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 Findlay v Findlay

Details

AGLC: Findlay v Findlay [2017] NZHC 2797
Case: [2017] NZHC 2797
Decision Date: 15 November 2017

CaseChat Overview and Summary

In Findlay v Findlay, the wife brought claims under the Property (Relationships) Act 1976 and the Family Proceedings Act 1980 against her former husband, and trustees of several trusts, for her share of the value of a building business. The claims arose out of the parties' marriage, which lasted 17 years until 2010, and the subsequent Canterbury earthquake sequence which allowed the husband to rebuild his business and generate considerable income. The wife argued that she had made substantial contributions to the business during the marriage and was entitled to a share of the value of the business and assets, and profits drawn from it, under the Property (Relationships) Act 1976. The husband and trustees argued that the wife had no share of the value of the business because it was held by trusts and companies and not in the names of the parties, and in any event the wife had been removed from her position as a trustee and beneficiary of the family trust. The wife also sought an order under section 182 Family Proceedings Act 1980 for the resettlement of the post-separation trusts. The court held that there was no relationship property to divide because the family's fortunes lay in the trusts, and the wife had no standing to bring a claim in breach of trust because she had been removed from her position as a trustee and beneficiary. The court also held that the wife's claim under section 182 was barred because the post-separation trusts did not make any provision for the husband in his capacity as a spouse. The court found that a constructive trust should be upheld for the benefit of the wife, to recognise her contributions to the marriage and her interest in the family business. The court held that the wife was entitled to a sum of $500,000 to be paid by the defendants, and reserved its position as to whether further orders would be made if the defendants did not arrange payment within a reasonable time.

Orders