Gera v Moir - [2013] NZHC 3255

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-745 [2013] NZHC 3255

IN THE MATTER of the Property (Relationships) Act 1976 and the Family Protection Act 1955

AND IN THE MATTER of an appeal against a decision of the
Family Court at Hamilton

AND IN THE MATTER of the Estate of WILLIAM JOHN BERRY, late of Te Awamutu, Deceased

BETWEEN ELVA GLADYS GERA Appellant

ANDMICHAEL JOHN MOIR as Executor and Trustee in the Estate of WILLIAM JOHN BERRY
Respondent

Hearing: 2 December 2013

Appearances: D M O'Neill for Appellant
C W Grenfell for Respondent
C A Gelston for Beneficiaries

Judgment: 6 December 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 6 December 2013 at 11.30 am pursuant to r 11.5 of the High Court Rules

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

Solicitors: A J Nolan, Hamilton Edmonds Judd, Te Awamutu Legal Solutions, New Plymouth

Counsel: D M O’Neill, Hamilton

GERA v MOIR [2013] NZHC 3255 [6 December 2013]

Introduction

[1] This is an appeal against a decision of Judge R H Riddell in the Family Court at Hamilton.1

[2] The Judge declined the Appellant’s application pursuant to s 62(2) Property (Relationships) Act 1976 (“Act”) to extend time for choosing “option A” or “option B” under s 61 of the Act. I am satisfied that the appeal must be allowed, for the reasons set out below.

Background

[3] The deceased, Mr Berry, died on 21 January 2012, leaving a will dated

16 January 2012 (“will”). Probate of the will was granted on 17 February 2012. The

Respondent is the executor and trustee of the will.

[4] The Appellant contends that she was the de facto partner of the deceased for

32 years, having met him in 1978. She seeks to make an application under the Act for a division of relationship property but cannot do so in the absence of orders from the Court pursuant to ss 62(2) and 69 of the Act.

[5] The deceased made some provision for the Appellant in his will. Aside from that, however, the beneficiaries of the will are the deceased’s two adult children (“beneficiaries”). They dispute the Appellant’s contention that she was the de facto partner of the deceased and thus her standing to make a claim under the Act.

Part 8 of the Act

[6] Part 8 of the Act makes provision for the division of relationship property on the death of a spouse or partner. The survivor may choose to apply for a division of relationship property under the Act (“option A”) or may elect not to make such an
application but to receive such property as they may be due under the will or on the

1 EGG v WJB District Court Hamilton FAM-2012-072-155, 26 June 2013.

intestacy (“option B”).2 A choice, once made, is irrevocable subject to the Court’s

power to set that choice aside under s 69.3

[7] In a case such as the present, the survivor must make their choice no later than six…

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 Gera v Moir

Details

AGLC: Gera v Moir [2013] NZHC 3255
Case: [2013] NZHC 3255
Decision Date: 6 December 2013

CaseChat Overview and Summary

The appeal in Gera v Moir involves Elva Gladys Gera appealing a Family Court decision made by Judge R H Riddell. Gera sought to extend the time limit for choosing between "option A" or "option B" under the Property (Relationships) Act 1976 after her election was made late, and her application was declined. The central legal issues in this case were whether the Family Court Judge correctly exercised her discretion under section 69 of the Act to set aside the Appellant's choice of option B and whether the Judge erred in considering irrelevant matters or failing to take into account relevant matters. The appeal hinged on whether the Judge should have considered the application under section 62(2) of the Act to extend time for making a choice, rather than under section 69. The court found that the Judge was correct to treat the matter as an application under section 69, but the reasons provided for declining the application were insufficient. The court also noted that the existence of other claims did not count against the application.

The High Court allowed the appeal and set aside the Appellant's choice of option B. The court extended the Appellant's time to make a choice under section 62(2) of the Act by two weeks from the date of the judgment. If no choice is made, the Appellant will be treated as having chosen option B under section 68(1) of the Act. The Appellant was awarded costs on a 2B basis with disbursements as fixed by the Registrar.

Orders