Glass v Glass - [2022] NZHC 3233

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000438

[2022] NZHC 3233

BETWEEN WILLIAM DENVER GLASS AND LYNDEN THOMAS GLASS
Applicants

AND

WILLIAM DENVER GLASS

Respondent

AND

LISA JANE KNIGHT

Interested Party

Hearing: 25 October 2022

Appearances:

A G M Whalan for Applicants

R W Raymond KC and J M McGuigan for Respondent S A Woods and A M Watkins for Interested Party

Judgment:

5 December 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 5 December 2022 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GLASS v GLASS [2022] NZHC 3233 [5 December 2022]

Introduction

[1] Sally Elizabeth Glass, known to all as Libby (Libby), had a long and successful second marriage to Denver Glass (Denver). During their marriage they built up a sizeable asset base through Denver’s pork meat businesses, as well as through acquiring, renovating, and selling valuable Christchurch character properties.

[2] Sadly, Libby died in February 2020 after suffering from dementia. Her will left her modest estate to Denver and to charities, and made no provision for her children.

[3] Her daughter, Lisa Knight (Lisa), one of Libby’s three children from her first marriage, now seeks leave (albeit in the name of the executors of Libby’s estate) to bring a claim under s 25(1)(a) of the Property (Relationships) Act 1976 (the PRA), for division of relationship property as between Libby’s estate and Denver.

[4] That will not be straightforward as Libby and Denver placed almost all their assets in trust. Lisa says, however, there are grounds for orders to be made under ss 44 and 44C of the PRA in respect of property which was disposed to trusts. If such orders are made, she would then seek provision from Libby’s estate under s 4 of the Family Protection Act 1955 (FPA), and under s 3 of the Law Reform (Testamentary Promises) Act 1949 (TPA).1

The application under s 88 PRA

[5] Leave is sought to bring the PRA proceeding under s 88(2) of the PRA. Leave can only be granted where it is established that refusing leave would cause “serious injustice”. As Mr Raymond KC, counsel for Denver, points out, that is a high threshold. It requires Lisa to establish that:

(a)she has a reasonable prospect of a successful PRA claim which would enlarge Libby’s estate; and

1 Although at hearing the only claim said to be pursued was a claim under the FPA.

(b)she has a credible claim under the FPA or TPA for provision from Libby’s estate.

[6] That said, the Courts have also made it clear the threshold should not be set too high. As the Court of Appeal said in Public Trust v Whyman, serious injustice does not mean “intolerable injustice”.2 The Court in that case also noted that:3
…it is important to recognise that the “serious injustice” contemplated by s 88(2) will always (or perhaps almost always) be to a person…

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 Glass v Glass

Details

AGLC: Glass v Glass [2022] NZHC 3233
Case: [2022] NZHC 3233
Decision Date: 5 December 2022

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide if Lisa Knight, the daughter of Libby Glass, could bring a claim for property division under the Property (Relationships) Act 1976 (PRA) against Libby's estate and her husband Denver. Libby and Denver had amassed a significant estate through their marriage, primarily through Denver's pork meat businesses and real estate investments. Libby passed away in February 2020, leaving a will that provided for Denver and charities, but made no provision for her children. Lisa sought leave to bring a claim under section 25(1)(a) of the PRA for the division of relationship property between Libby's estate and Denver. Lisa argued that the estate's value was understated because assets were transferred into trusts, potentially removing them from the relationship property pool. The court found that there was a reasonable prospect of a successful PRA claim that could enlarge Libby's estate. However, Lisa's claim was complicated by a 2017 Deed, in which she agreed to certain terms in exchange for a capital distribution of $315,000 and waived any future claims against Libby's estate. The court concluded that the Deed did not preclude an FPA claim, as it was strongly arguable that the Deed was confined to claims under the Law Reform (Testamentary Promises) Act 1949 and did not preclude a claim under the Family Protection Act 1955 (FPA). The court also found that Lisa had a credible FPA claim, as she had only received modest provision in her lifetime, which stood in stark contrast to the value of the assets Libby and Denver accumulated during their marriage. Therefore, the court granted leave under section 88(2) of the PRA for the executors to bring a claim under section 25(1)(a) of the PRA, and ordered Denver to pay costs to Lisa on a 2B basis.

Orders