Gera v Moir
[2016] NZHC 613
•8 April 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2015-419-263 [2015] NZHC 613
BETWEEN ELVA GLADYS GERA
Appellant
AND
MICHAEL JOHN MOIR AS EXECUTOR AND TRUSTEE IN THE ESTATE OF WILLIAM JOHN BERRY
Respondent
Hearing: 3 and 4 December 2015 Counsel:
W J Scotter for Appellant
C A Gelston for RespondentJudgment:
8 April 2016
JUDGMENT OF FOGARTY J
This judgment was delivered by Justice Fogarty on
8 April 2016 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Harkness Henry, Hamilton
Legal Solutions, New Plymouth
GERA v MOIR AS EXECUTOR AND TRUSTEE IN THE ESTATE OF BERRY [2015] NZHC 613 [8 April
2016]
Introduction
[1] The appellant, Ms Gera, as applicant commenced proceedings in the Family Court seeking relief under the Family Protection Act 1955, based on inadequate provision for her in the will of the late William John Berry. By his will, Mr Berry left Ms Gera a life interest in a residential unit at Mahoe Street, Te Awamutu. The will was made on his death bed.
[2] Ms Gera claims for further provision at the Court’s discretion under the Family Protection Act out of Mr Berry’s estate on the basis that she was in a qualifying de facto relationship with Mr Berry.
[3] Accordingly, the issues before the Family Court, at first instance, were: 1
(a) Was Ms Gera living in a de facto relationship with Mr Berry at the date of his death? (Family Protection Act, s 3(1)(aa)).
(b) If so, should Ms Gera be granted further provision from Mr Berry’s
estate?
Approach on appeal
[4] In a reserved judgment after a five-day hearing, Judge DR Brown found there was a qualifying de facto relationship between Ms Gera and Mr Berry, but not at the date of his death. Her application under the Family Protection Act was accordingly dismissed.
[5] This is an appeal enabled by s 72 of the District Courts Act 1947. It is a general right of appeal.
[6] Having heard an appeal under s 72, s 76 of the Act sets out the powers that the High Court has, starting with the power to:
(a) make any decision or decisions it thinks should have been made.
1 EG Gera v MJ Moir as Trustees of the Estate of William John Perry [2015] NZFC 6077 at [1].
[7] Addressing s 76, the Supreme Court in Austin Nichols & Co v Stichting
Lodestar2 said, inter alia:
[13] … The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary”3 caution appropriate when seeing the witnesses provides an advantage because credibility is important.4 Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd5 …
[8] In Rae Tipping J, who was a member of the bench in Austin Nichols, said:6
While not purporting to set out an exhaustive test, there are two conventional circumstances in which an appellate Court may differ from the trial Judge on a matter of fact. They are:
(a) If the conclusion reached was not open on the evidence, ie where there was no evidence to support it; and
(b) If the appellate Court is satisfied the trial Judge was plainly wrong in the conclusion reached.
[9] On the face of it, that dictum appears to be in conflict with the dictum cited from Austin Nichols. But that is explained by a note in brackets in footnote 5 set out below, that is where apparently broader statements must be read in the context of the appeal against conclusions of fact which turn on credibility.
The statutory entitlement to make a claim under the Family Protection Act
[10] Relevantly, s 3(1)(aa) of the Family Protection Act 1955 provides:
3 Persons entitled to claim under Act
(1) An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons:
(aa) a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death:
2 Austin Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
3 Shotover Gorge Jet Boats Ltd v Jamieson [1987] 1 NZLR 437 (CA) at 441 per Cooke P.
4 As to such advantages, see, for example, Powell v Streatham Manor Nursing Home [1935] AC
243 at 255 per Lord Atkin and at 256 per Lord Macmillan.
5 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at
197 per Richardson P and Tipping J and at 199 per Thomas J (where apparently broader statements must be read in the context of the appeal against conclusions of fact which turned on credibility).
6 At 197.
[11] Section 2 of that Act provides that “de facto relationship” has the meaning given to it by s 2 of the Property (Relationships) Act 1976.
[12] Section 2D of that Act provides:
2D Meaning of de facto relationship
(1) For the purposes of this Act, a de facto relationship is a relationship between 2 persons (whether a man and a woman, or a man and a man, or a woman and a woman)—
(a) who are both aged 18 years or older; and
(b) who live together as a couple; and
(c) who are not married to, or in a civil union with, one another. (2) In determining whether 2 persons live together as a couple, all the
circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship:
(b) the nature and extent of common residence: (c) whether or not a sexual relationship exists:
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
(e) the ownership, use, and acquisition of property:
(f) the degree of mutual commitment to a shared life: (g) the care and support of children:
(h) the performance of household duties:
(i) the reputation and public aspects of the relationship. (3) In determining whether 2 persons live together as a couple,—
(a) no finding in respect of any of the matters stated in subsection (2), or in respect of any combination of them, is to be regarded as necessary; and
(b) a Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.
(4) For the purposes of this Act, a de facto relationship ends if—
(a) the de facto partners cease to live together as a couple; or
(b) 1 of the de facto partners dies. (Emphasis added.)
[13] In Scragg v Scott7 a full bench of the High Court, Gendall and Ellen France
JJ, said:
[30] So it can be seen that the legislative direction has been to ensure that the statutory regime for the division of property between couples who live together in certain relationships is to be determined by whether the statutory provisions apply, the crucial one being, in the context of this and many cases, whether the parties are “living together”.
[14] In L v P (division of property) 8, Asher J said:
[44] The Judge in this part of his analysis appeared to lose sight of the structure of s 2D, and that the central plank of a de facto relationship is the parties living together. He considered each s 2D(2) factor as if it were indicative of a de facto relationship, rather than indicative of whether the parties were living together as a couple. The Judge focused on a particular event, undoubtedly an important one, namely their decision to live together, and appeared to elevate this to their actually commencing a de facto relationship. In doing so, he lost sight of the fact that while the parties need not reside together all the time for there to be a de facto relationship, the circumstances must equate to their living together. The dominating factor remains whether the parties can be seen as living together as a couple. The judge has focused on the particular criterion of a mutual commitment to a shared life, but overlooked that the parties were expressly and by agreement not living together at the point they decided to live together, and would not do so until they took over the Glanville Terrace tenancy
[15] Both judgments are consistent in submitting that the dominant factor remains whether the parties can be seen living together as a couple, found in 2D(1)(b), (2)(f), (3) and (4)(a), as underlined above I would add that s 2D(1)(b) makes living together as a couple, an essential condition of a de facto relationship. By contrast the criteria in (2) are not definitive.
[16] Mr Scotter, for the appellant, submitted that it was common ground that the
Court should be guided by the decision of the High Court (Heath J) in B v F (de facto relationship).9 This judgment is cited by Judge D R Brown. His references to
7 Scragg v Scott [2006] NZFLR 1076 (HC) at [30].
8 L v P (division of property) [2008] NZFLR 401 (HC) at [44].
9 B v F (de facto relationship) [2010] NZFLR 67 (HC).
from [45]-[48] of the judgment, in my view, have to be treated with care. They reflect part of the judgment examining when a de facto relationship ends. Assuming that when it ends, it fits the long understood use of the phrase “living apart” discussed in the authorities well prior to the enactment of s 2D.
[17] I do not think that decisions of the 19th century cited by Heath J in B v F, Bradshaw v Bradshaw,10 Huxtable v Huxtable,11 Millet v Millet12 and Sullivan v Sullivan,13 examining the concept of living apart (which is a standard not to be found in s 2D at all) should guide the application of a positive state of a “relationship
between two persons … who live together as a couple”.
[18] I respect the approach of Heath J is one he was entitled to take as the criteria in s 2D are not exhaustive. For myself, I am wary of applying criteria from different contexts, legal and factual. I go on to explain my preference.
[19] In B v F Heath J said:
[46] Since at least 1897, it has been acknowledged that cohabitation does not necessarily imply that husband and wife were living together physically under the same roof: Bradshaw v Bradshaw [1897] P 24 at 26; see also Huxtable v Huxtable (1899) 68 LJP 83 at 85 and Millett v Millett [1924] NZLR 381 (SC) at 383.
[20] The issue before the Court in Millet v Millet was whether or not a husband should be granted a cancellation of an order made that he live separately from his wife. That had been granted in 1921 on the application of the wife. Subsequently, the husband commenced divorce proceedings on the ground of adultery. He then discontinued those proceedings. Matrimonial relationships were occasionally resumed. The husband there brought a second application for divorce, on the ground of adultery, which was dismissed on the ground of condemnation. The husband then applied for a cancellation of the original separation order on the grounds of supervening cohabitation. The application was granted by the Magistrate and upheld
by the Supreme Court, Salmond J.
10 Bradshaw v Bradshaw [1897] P 24.
11 Huxtable v Huxtable (1899) 68 LJP 83.
12 Millet v Millet [1924] NZLR 381 (SC).
13 Sullivan v Sullivan [1958] NZLR 912 (CA).
[21] It was contended, on behalf of the wife (who was the appellant in Millet), that merely casual and occasional acts of sexual intercourse with her husband did not, in themselves, amount to a resumption of cohabitation within the meaning of s 1 of the Destitute Persons Act. The Court relied on English authorities to say that occasional intercourse between a separated couple did not mean a common intention to resume normal matrimonial relations. They were not sufficient to end a separation of the
parties. Salmond J then went on:14
On the other hand, cohabitation as man and wife does not necessarily involve residence in a common matrimonial home. The mere fact that in the present case the husband resided on his farm while the wife resided in her house in Palmerston North is not in itself sufficient to prove that they were living separate and not cohabitating as man and wife. Thus in Bradshaw v Bradshaw15 the wife was a domestic servant residing in the house of an employer. The husband was an artisan who worked in his father’s house but visited his wife from time to time and had sexual intercourse with her. They had never lived under the same roof. Yet it was held they were cohabitating as husband and wife.
[22] It can be seen that these judgments were examining the concept of cohabitation under a very different set of laws relating to separation and divorce.
[23] Personally, I have considerable reservations about taking this dictum of Salmond J in 1924 in Millett and inserting it into the application of all the considerations carefully set out by Parliament in s 2D. I favour the emphasis of Gendall, Ellen France and Asher JJ as cited above, on the concept of the parties “living together as a couple” being the dominant criteria. Gendall and Ellen France JJ defined it as “the crucial one”. Asher J described it as “the dominating factor”.
[24] Where two persons “live together as a couple”, they will normally be living under the same roof. There will need to be special reasons why they are apart. Of course, there are many couples living together who do not live under the same roof, are separated, particularly by reason of the job commitments of one or both of them. There are many couples where the wife works, say, in Papua New Guinea as a
humanitarian aid worker while her husband resides, say, in Auckland, looking after
14 Millet v Millet, above n 12, at 383.
15 Bradshaw v Bradshaw, above n 10.
the children and ensuring their schooling. In such circumstances, there is no difficulty in saying that they live together as a couple.
[25] I note that in the Family Court Judge Brown also cited [47] of B v F where Heath J examined the concept of living apart, finding it involved two essential ingredients – a physical separation and a mental attitude adverse to cohabitation on the part of one or both of the spouses. Heath J’s observations are drawn from Sullivan v Sullivan.16 Again, this was a decision relating to the different legal context of separation and divorce. Care must be taken in adopting such an approach to s 2D of the Family Protection Act.
[26] My reservation can be summarised succinctly. The authorities relating to separation and divorce frame the analysis in the negative. They ask: are the parties living apart? That question presupposes that, at some point in time, the parties were living together. This necessarily informs how a Judge will approach the task of answering that question. By contrast, s 2D frames the analysis in the positive: are the parties living together? This latter question does not require the Judge to start with any presumption as to the parties’ living arrangement. The analytical task required by the question when framed in the positive is different to that required when framed in the negative.
The Family Court decision
[27] Both counsel were at pains to compliment the trial Judge, Judge Brown, as an expert. I accept the compliment to the Judge but, guided by Austin Nichols, I am obliged not to defer in that respect. However, I do exercise the caution appropriate when examining a judgment following a five-day hearing of witnesses, totalling 398 pages of notes of evidence, read against a perusal of 8,000 pages of diary notes made by the deceased. I do not read the Supreme Court in Austin Nichols as intending to disagree with the decision of the Supreme Court in Rae, particularly the judgment delivered by Tipping J, see [8] above.
[28] Judge Brown succinctly provides the background and outlines the history of the relationship between Ms Gera and Mr Berry in the following opening paragraphs of his judgment:17
[2] Mr Berry was 78 when he died on 21 January 2012. He owned a dairy farm at Parawera (between Te Awamutu and Te Kuiti).
[3] Ms Gera and Mr Berry met in 1978. They had each been previously married. Ms Gera has two daughters from that marriage, Anita and Deborah and Mr Berry has a son Robert and a daughter Christine from his marriage.
[4] Ms Gera’s case is that from 1980 she lived many days with Mr Berry on the farm to which she would travel from her home (initially Hamilton, but later Tauranga) on most weekends.
[5] In or about 1983 Mr Berry took on a sharemilker and was no longer responsible for daily milking. He became a rural insurance broker, indefatigably travelling virtually the length and breadth of the country servicing the needs of what appears to be a significant portfolio of rural insurers. At times Ms Gera would travel with Mr Berry.
[6] Mr Berry had an active interest in horse racing.
[7] Mr Berry lived throughout on the farm at Parawera. Ms Gera lived in successive homes in Tauranga and then in 2003 moved to a home she purchased in Hamilton which she sold the next year and replaced with a second Hamilton property. She sold that property the following year and purchased a section at Bank Street, Te Awamutu on which she had a house built over a period of nearly two years. She was living in that home when Mr Berry died on 21 January 2012.
[8] In 2011 Mr Berry had been looking for a property for himself in Te Awamutu. Towards the end of 2011 Mr Berry made an offer on a unit at Mahoe Street, Te Awamutu. During his final hospitalisation in early 2012 (during which he was told that his illness was terminal) Mr Berry instructed his solicitors to declare the purchase of the Mahoe Street property unconditional and executed a fresh will. The will effectively divided his estate between his children (as had his earlier wills) but there was added a specific bequest to Ms Gera of a life interest in the Mahoe Street property.
[29] There is no doubt that over the 32 years Ms Gera and Mr Berry had an active sexual relationship, with periods of coolness. It was a relationship compromised by Mr Berry’s mother’s hostility to Ms Gera, and Mr Berry’s mother’s longevity. She died aged 101, just a month before Mr Berry died. It was Ms Gera’s case that their relationship was continuous down to Mr Berry’s final illness. That everybody in their social world knew of the relationship and thought of her as Mr Berry’s partner.
[30] Mr Berry’s children, Christine and Robert, do not believe their father was ever in a de facto relationship with Ms Gera. There is no doubt that Mr Berry was able to compartmentalise his life and keep his relationship with Ms Gera largely out of sight of his mother and probably, for that reason, away from other members of his family.
[31] The sequence of findings by Judge Brown was that in 1983 there was a friendly and cooperative friendship between Mr Berry and Ms Gera. By 1990 there were an increasing number of stays in each other’s house. By 1992, there was increasing frequency of Mr Berry staying at her house and some staying by her on his farm. The same pattern continued and then the Judge found that in 1995, the frequency and repetitivity of staying over was increasing.
[32] The Judge then found:
[62] Although Mr Berry and Ms Gera’s nights together were far from continuous, there was a change in their character. For example on 3 May
1995, Mr Berry travelled to Tauranga and spent the night there, had an “easy day” there the next day, did garden work spraying at Ms Gera’s home the next day, Ms Gera came back to the farm with Mr Berry the following
evening, Ms Gera spent the next two days on the farm, on the second of
which Mr Berry “did lawns and Elva pruned some shrubs” and the next day
Mr Berry took Ms Gera into town (Te Awamutu) for various purposes.
[63] It is my view that at this point a line was crossed and Mr Berry and Ms Gera were in a de facto relationship. Their relationship was already for considerable duration. While their common residence remained episodic, it is important to appreciate that Mr Berry’s work as an insurance broker took him to all parts of New Zealand and frequently required him to stay away from the house. And there was a tension in Ms Gera’s attendance at the farm in that Mr Berry remained dutiful and attentive to his elderly mother whose attitude to Ms Gera was unaccepting. I accept Ms Gera’s evidence that their relationship was sexual.
[33] Judge Brown made the following findings:
[100] The relationship continued as before in the first months of 2011. On
9 March 2011 however Mr Berry recorded:
CALLED EVLA’S for the LAST TIME. Not pleased with me going to give my old TV to Debbie. Should have left the organisation to her and not tried to deal with Debbie. Great when you try to give something away. May Be for the Best Going our on Ways.
[101] The next diary entry was 2 August 2011. Mr Berry wrote:
ELVA rang for the 1st time since I tried to get my old TV
given to Debbie.
[102] The next entry was 25 August 2011:
Met ELVA at the Post Office for the 1st Time since I got New
T.V.
[103] Ms Gera and her family essentially denied that this rift had occurred but I am unable to accept this evidence. Putting aside the fact that each entry positively described the contact as the first, having read the whole of Mr Berry’s diaries and become familiar with the shape and texture of his recordings, I regard it extremely unlikely that Mr Berry would not have recorded any intermediate contact. In my view at this point Mr Berry and Ms Gera mutually agreed and decided to end their relationship. I find that their de facto relationship ended at this point.
[34] It is important, when appreciating the argument before this Court, to note that the Judge found the de facto relationship ended for the reasons set out in these four paragraphs. He then went on.
[35] Judge Brown continued the narrative of events through to 30 December 2011:
[104] That the de facto relationship was over is also to be seen in the Christmas card Mrs Gera was later to send to Mr Berry (to which this Judgement will return).
[105] On 6 September 2011, Mr Berry recorded:
Into town after 1PM. CALLED Elva’s and she came with me to sh
PAK A SAVE. Big change from when I got my big T.V.
[106] They had a “cuppa” on 13 September 2011.
[107] On 3 November 2011 Mr Berry was aware that Ms Gera was “on the drip” in Waikato (Hospital) and that she was home two weeks later. Further, Mr Berry and Ms Gera went to a supermarket together on 22 November and a few days later Ms Gera made Mr Berry aware of an attractive unit in Te Awamutu which might meet his need to move there. His diary makes it clear that Mr Berry was aware that Ms Gera was back from Auckland on 30
December 2011.
[36] At the end of these findings, he then reiterates his conclusion and returns to the Christmas card as follows:
[108] These things do not amount in my view to the commencement of a new de facto relationship. Were there doubt about that issue it would for me be satisfied by the fact that I am satisfied that Ms Gera sent Mr Berry a Christmas card which contained the following handwritten words:
Welcome to your new home. Hope you will be very happy in it. It’s
so nice when we are friends. Elva.
[109] Ms Gera says that this card which Mr Berry’s family say was found with his 2011 Christmas cards, was in fact sent by her to him 11 years before when he bought an investment property in Otumoetai. Quite apart from the implausibility of such a card surfacing after 11 years it is completely clear that that property was never intended to be and never was Mr Berry’s home. The closing words of the card make it plain that the relationship then existing, and to exist, was one of friendship.
[110] The fact that Mr Berry called Ms Gera as well as his family to his assistance when he became severely ill in early January does not affect this finding.
[111] I therefore find that there was no qualifying de facto relationship between Ms Ger and Mr Berry at the date of his death.
[112] Ms Gera’s application in accordingly dismissed.
[113] Costs are reserved.
[37] Although the Judge was careful to make his findings as to the end of the de facto relationship and no commencement of a new de facto relationship, he was obviously reassured by his finding that the Christmas card was a 2011 Christmas card.
Analysis
[38] In the argument before me, there was no serious contest to the finding that Mr Berry and Ms Gera were in a de facto relationship in 1995. I am not persuaded that the Judge was wrong as to that finding. I note, however, that it is on the edge of the dominant statutory criterion of two persons living together as a couple.
[39] However, for any claim to be made under the Family Protection Act, the de facto relationship had to be in existence at the date of death of Mr Berry, on
21 January 2012.
[40] It is an important fact that on his death bed Mr Berry instructed that his will should provide a life interest to Ms Gera in the home he had just purchased at Mahoe Street. Second, he made arrangements to ensure that the property purchase would proceed and not be possibly defeated by his executors. By these two acts he
demonstrated, at the very least, a strong bond of friendship between himself and Ms
Gera, notwithstanding its ups and downs over the years.
[41] As well as these competing witnesses on credibility, the Judge had the advantage of Mr Berry’s diaries: 27 diaries from 1983 to 2011 (with 1986 and 1998 missing). They were produced in evidence. Both counsel struggled before the Judge to address the almost impossible task of extracting from 8,000 pages, patterns and analyses which supported each point of view. Unbeknown to counsel, when the case was reserved, the Judge decided the only alternative was for him to read the diaries in full and he did so. The Judge summed up the scope of the diaries in this way:
[39] At least from 1983, Mr Berry was an instinctual chronicler of his days. At one extreme a day’s entries may be no more or less than the name, address and contact details of the insurance clients he proposed to visit in the day. Also generally recorded were farm production figures and car mileages. There are occasional (neutral) recordings of major political and world events. But the important thing for these proceedings is that generally Mr Berry recorded where he was for the day, what he and others around him did and where he travelled. He also generally recorded where he had his dinner (“tea”) and where he spent the night if he was away from home.
[40] Ms Gera was anxious that there would be omissions in the diaries. Undoubtedly there are. At an overt level there are occasionally empty pages and pages with very little content. And extremely occasionally, a morning entry will find Mr Berry at a location without a corresponding travel entry for the day or night before.
[41] The reader of the totality of these diaries gains thereby a sense of their author and the patterns of his recordings. The importance of Ms Gera to Mr Berry as the years go by is obvious and I think it highly unlikely that he would fail to record any significant event between them.
The date of the Christmas card
[42] Mr Scotter, for the appellant, made a strong attack on the finding in paragraphs [108]–[109] that the Christmas card was sent in 2011. (The card has been lost since the trial.) He reported to this Court on appeal his client’s immediate reaction upon reading the judgment to the proposition that Ms Gera had sent the card in Christmas 2011.
[43] Personally I find considerable force in Mr Scotter’s argument that it is implausible that a Christmas card at least 11 years old should be found. But, on my analysis it was not a critical element in the Judge’s analysis leading to his
conclusion. Rather, he was persuaded by the fact that during 2011 there was very little contact between the couple.
[44] To that I add my reaction that it is commonplace upon imminent death for persons to reconcile differences and renew relationships. The bequest of a life interest clearly demonstrates strong emotional feelings on the part of the deceased as he approached his death and a wish to recognise in a tangible way Ms Gera’s contribution to his life.
[45] Although it does not appear from this latter part of the narrative, Mr Berry had made an offer on the unit in Mahoe Street, Te Awamutu prior to Christmas Day. The context was that Mr Berry’s health was failing and he was planning to move off the farm at the end of the milking season, in June 2012. It was in this context that he was looking to acquire a new property for himself in Te Awamutu in 2011. He began looking in February 2011. On 25 November 2011, he viewed the Mahoe Street unit in the company of Ms Gera, she having drawn his attention to this unit.
[46] On 2 December he made an offer on Mahoe Street. This is recorded in his diary and Ms Gera’s name is not mentioned. On 5 December, he undertakes due diligence, re Mahoe Street, Ms Gera not being mentioned or present. On
8 December, the diary records him putting in a offer on Mahoe Street. On
16 December he speaks to his accountant about the purchase of Mahoe Street.
[47] The diary confirms that he was looking at other properties before Mahoe
Street and before his first contact in 2011 with Ms Gera, who rang him on 2 August.
[48] In February 2011, he looked at the property in Jackson Street. In March, he looked at a property at Fitzpatrick Place; in April, at Cooper Crest; in July, at a property at Te Rau Road; and another section that same month. It is clear, at that time that he was not looking at a property for he and Ms Gera to live in as a couple and, at that time, they were not speaking after the rift during his attempt to give her daughter, Debbie, his old TV.
[49] If the Christmas card did indeed come from Ms Gera in December, it fits into a context where she knew he had made an offer to buy Mahoe Street, hoping he would be happy in it and recognising they were friends.
[50] Ms Gera gave evidence that it was a Christmas card that she had sent in 1996, that it had been found by Mr Berry’s daughter, Christine, amongst his papers, he being a hoarder, and used in this litigation to thwart the proposition that they were in a de facto relationship. This was denied by Christine. Both witnesses, of course, appearing and being examined in front of the trial Judge, Judge Brown.
[51] There is a set of facts giving some credence to the possibility that the
Christmas card was written in 1996.
[52] Mr Scotter points out two errors in para [109] of the judgment, one minor, one more significant. The minor one was that it was 16 years, not 11 years between
1996 and 2011. The second is that there was evidence in the diary that the property at Otumoetai was considered by Mr Berry for living in. He points to a several diary entries for 1996:
81 07/11/1996 John writes: Elva & I met
Michael Moynoham (HARVEYS) Looked at Place on Otumoetai Beach Road. Looks out straight over the Mount entrance. Looks good for living or renting in. Had a good look at place ELVA interested in Otumoetai Road.
Diary 1996
& CJ, [25], p328, annexed
“H”
82 08/11/1996 John signed contract to purchase
Otumoetai Road $222,000
Diary 1996 83 13/11/1996 John over to Tauranga
John paid deposit for Otumoetai
Road.
Had at a look at Otumoetai Road
John stayed the night
Diary 1996 84 20/12/1996 John settled Otumoetai Road
purchase.
John rings Elva to pick up keys to Otumoetai Road
Diary 1996 &
CJ, [25], p328
annexed “H”
85 22/12/1996 John picked up bedding from
Rosalie’s and took it to
Diary 1996
Otumoetai Road. Elva moved
into Otumoetai Road while her house gets painted. John stayed the night. (Elva remained at Otumoetai Road until
04/02/1996-44 days)
86 23/12/1996 Matthue (Elva’s son) and his
girlfriend also staying at
Otumoetai Road
Diary 1996 87 25/12/1996 John writes: Rang Christine.
Easy day. Left for 543A Otumoetai Rd 3 PM. 15 of us
went to Valentines for Dinner.
8.15 PM very good. Rosalie & John. Megan Peter & 2 boys. Bob His Wife & son from Canada. Debbie & Aden. Elva
& myself. Mathew & Michael.
Diary 1996 88 27/12/1996 John brought stock for Deborah’s
shop.
Elva & John & Deborah at
Otumoetai Road
Elva & John picked up Elva’s gear from storage shed and put it in Otumoetai Road
Diary 1996 89 29/12/1996 John spends 5 hours water
blasting Otumoetai Road
Diary 1996 1997 91 01/01/1997 John, Elva and Debbie all staying
at Otumoetai Road
Diary 1997 92 10/01/1997 John over to Otumoetai Road
Took trailer of gear for garage sale
John stays the night at Otumoetai
RoadDiary 1997 93 11/01/1997 Garage sale at Otumoetai Road
John stays the night at Otumoetai
Road
Diary 1997 94 19/01/1997 Elva, Rosalie and her partner
have another garage sale at
Otumoetai Road
Diary 1997 95 26/01/1997 John at Otumoetai Road Diary 1997 96 03/02/1997 John over to Otumoetai Road
John stays the night at Otumoetai
Road
Diary 1997
97 04/02/1997 John moves all of Elva’s goods
from Otumoetai Road to her new place. Otumoetai Road ready for
letting.
Diary 1997
[53] It is clear from those entries that Mr Berry and Ms Gera were together at that property on 25 December. It was in a context where they were not intending to live together in it. Elva moves to her new place and on 4 February, he is getting that property ready for letting.
[54] We need to keep in mind that the Judge has read these entries. Reading [109] of his judgment, in the light of these entries, he is drawing the inference that Mr Berry never intended to live at the property. Confined solely to those diary entries, that conclusion has a problem with the entry on 7 November. But it is important to keep in mind the farm and the wider context of the relationship.
[55] Here I defer to the advantage of the trial Judge. He considered it completely clear that the property was never intended to be and never was Mr Berry’s home. On his understanding of the evidence, the handwritten words on the Christmas card did not make sense to the situation as it was on 25 December 1996.
[56] It is necessary also to keep in mind that he and this Court are working on probabilities when making judgments. Hampered by the death of Mr Berry, his unavailability as a witness, the limited utility of the diaries and the partisan character of the witnesses giving evidence.
Judge Brown’s s 2D analysis
[57] As already discussed, I was concerned at the hearing of the appeal of the apparent reliance by the Judge on case law preceding s 2D focused on identifying when the parties were living apart, rather than focusing upon the statutory criterion of whether or not they were living together at the date of death. Overall I do not think it would have been a significant error. As the judgment under appeal demonstrates, the trial judge was prepared to take a very open-minded view of what
circumstances constitute a de facto relationship and found one existed for a considerable period of time. There is no doubt that Judge Brown spent a considerable period of time examining all the evidence. He reached a clear view that as at 9 March 2011, the downward trajectory of the relationship had reached such a point that Mr Berry and Ms Gera had ceased “living together as a couple”. The parties had not seen each other for five months.
Decision
[58] As I have had occasion to mention a number of times already, upon the onset of his terminal illness the couple renewed their close friendship, but that is an entirely different question from whether or not it could be said that they were living together as a couple at the time of death. The Judge found that their relationship just prior to and at the death of Mr Berry, was one of friendship.18 There is no doubt that prior to the onset of his illness Mr Berry was clearly purchasing a home, eventually Mahoe Street, as a residence for himself, not as a residence for himself and Ms Gera.
[59] I am not persuaded that Judge Brown’s findings in [109] are wrong. Where I am not persuaded that the first instance Judge’s findings are wrong, then the law is clear. It is necessary in that instance to dismiss the appeal.19
It is only if the appellate court considers that the appeal decision is wrong that it is justified in interfering with it.
[60] In coming to my view that I am not persuaded that the decision on appeal was wrong, I have assumed “the responsibility of arriving at (my) own assessment of the merits of case”.20 In my assessment it was always going to be a difficult task for Ms Gera to establish that she and Mr Berry were in a de facto relationship, that they lived together as a couple, let alone on the date of his death. She has established, contrary to Mr Berry’s family’s appreciation, that she and Mr Berry were lovers and very close friends over a long time. It was a long call for Judge Brown to find that they had a de facto relationship prior to death, but that was a judgment open to him.
I am not sure that had I been Judge at first instance that I would have ever found that
18 At [108].
19 Austin Nichols & Co v Stichting Lodestar above n 2.
20 At [5].
they lived together as a couple. They did, however, have a very special and enduring relationship. I think, however, that Judge Brown is right, that it had broken down in early 2011 and that immediately before and upon the death of Mr Berry they were friends, old and valuable friends, but not living together as a couple.
[61] The appeal is dismissed.
Costs
[62] The respondent trustees are entitled to costs. Costs will be fixed on a 2B basis with leave to apply for an uplift if some of the steps in the schedule are inadequate.
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