Gardiner v Dyer - [2018] NZHC 355

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, 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

CIV-2017485-30

[2018] NZHC 355

BETWEEN
JULIA FRANCES GARDINER

First Appellant

AND

JULIA FRANCES GARDINER AND

PETER JOHN CLARK (AS TRUSTEES OF THE KARAKA TRUST)
Second Appellants

AND

WAYNE DYER

Respondent

Hearing: 29 August 2017

Appearances:

R A Newberry for First Appellants F M Gush for Second Appellant

R J B Fowler QC, G M Letts and R M A Purchas for Respondent

Judgment:

8 March 2018

JUDGMENT OF CHURCHMAN

Pursuant to r 11.5 of the High Court Rules I direct the delivery time of this judgment is
2.30 pm on 8 March 2018

GARDINER v DYER [2018] NZHC 355 [8 March 2018]

Introduction [1]

The trust [5]

The Family Court decision [12]

Approach to relationship property appeals [19]
Facts [21]

Financial positions as at commencement of the relationship [27]

The first appellant’s asset position  [34]
The trust’s assets  [41]
Occupation of trust property  [47]
Respondent’s contributions  [51]
Motor vehicles  [118]

Other components of loan [143]

Tax and GST liabilities  [148]
Family Court’s finding on nature of loan  [189]
Issue No 2 setting aside dispositions to Karaka Trust  [202]
History of the CIP shares  [205]
Family Court’s findings in relation to CIP shares  [223]
The 2009 CIP share acquisition  [250]
Nature of property  [259]
Section 44(2)(b)  [277]
Other shares  [281]
General shares  [284]

Issue Three: Section 182 Family Proceedings Act 1980 [298]

Court’s decision on s 182 application  [308]
The trust’s position on s 182  [355]
The law on s 182  [361]

Issue four: extent of relationship property [372]

Issue five: absence of a family home  [389]
Estoppel  [418]
Conclusion  [428]
Issue two: dispositions to the trust  [428]
Issue three: s 182 Family Protection Act 1980  [434]
Issue four: extent of relationship property  [437]
Issue five: absence of a family home  [438]
Costs  [440]

Introduction

[1] Julia Gardiner (the first appellant) and Wayne Dyer (the respondent) began a de facto relationship in October 1999, they married on 19 February 2000, separated on 1 June 2012 and their marriage was dissolved in October of 2014.

[2] For the purposes of the Property (Relationships) Act 1976 (PRA), their relationship lasted twelve and a half years.

[3] Both parties had been married previously. There were no children of the relationship but the first appellant had a son, Kevin (not his real name), who was an adult when the parties’ relationship began but who suffered from some addiction and other problems and was dependent upon the first appellant in a way that adult children normally are not. From time to time, Kevin either lived with the first appellant or was financially supported by her. The first appellant had established a trust of which Kevin was the primary beneficiary.

[4] Most of the issues…

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 Gardiner v Dyer

Details

AGLC: Gardiner v Dyer [2018] NZHC 355
Case: [2018] NZHC 355
Decision Date: 8 March 2018

CaseChat Overview and Summary

The appeal before the Court was between Julia Gardiner (the first appellant) and Wayne Dyer (the respondent) who had been in a de facto relationship for twelve and a half years and married for eight years. The parties separated in 2012 and their marriage was dissolved in 2014. The appeal related to the Family Court decision in proceedings issued by the respondent against the first appellant in the Family Court. The appeals require consideration of multiple provisions of the Property (Relationships) Act 1976 (PRA) including s 2G, s 11B, s 41 and s 44C, as well as s 182 of the Family Proceedings Act 1980. The respondent alleged various errors in relation to the application of the law and that the Family Court decision proceeded on the basis of mistakes as to the facts. The Court found that the Family Court had correctly assessed the asset positions of the parties at the commencement of the relationship and that the first appellant had made a significant financial contribution to the trust. The Court found that the respondent did not make significant contributions to the trust and that the respondent had made contributions to the trust from his own income, but that those contributions were not as significant as the first appellant had contributed. The Court found that the respondent had made significant contributions to the trust by way of motor vehicles, but that this was not a contribution to the trust. The Court found that the respondent had not made significant contributions to the trust by way of physical effort in the renovation of trust property. The Court found that the Family Court had correctly assessed the nature of the contributions made by the respondent to the trust property. The Court found that the Family Court had correctly assessed the extent of the relationship property. The Court found that the Family Court had correctly assessed the absence of a family home. The Court found that the Family Court had correctly assessed the issue of estoppel.

Orders