Gosbee v Gosbee - [2020] NZHC 1001

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 AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001771

[2020] NZHC 1001

IN THE MATTER of the Property (Relationships) Act 1976

BETWEEN

VIVIENNE HELEN GOSBEE

Appellant

AND

CARL HENRY GOSBEE

Respondent/Cross-Appellant

Hearing: 13 February 2020

Appearances:

S Mitchell for Appellant

SE McCabe and S Recordon Respondent/Cross-Appellant

Judgment:

14 May 2020

JUDGMENT OF WALKER J

This judgment was delivered by me on 14 May 2020 at 4.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

GOSBEE v GOSBEE [2020] NZHC 1001 [14 May 2020]

Introduction

[1] Vivienne Gosbee appeals a decision of the Family Court declining her claim for compensation under s 15 Property (Relationships) Act 1976 (the Act).1

[2] Carl Gosbee cross-appeals the decision of the Family Court that half of the capitalised value of his United Kingdom Local Government Pension Scheme (Pension Scheme) is to be paid to Ms Gosbee now rather than in 2034 when he is eligible for a lump sum payment and annual benefits. Mr Gosbee’s cross-appeal is contingent. He raises it only in the event that I allow the appeal. In all other respects, he supports the overall outcome of the first instance decision.

[3] Section 15 of the Act is aimed at addressing economic disparity between partners after separation where that disparity is caused by the division of functions within the relationship. It permits adjustments after application of the property division “rules” of the Act in the form of compensation to the disadvantaged partner. Although the aim is straightforward, the application of s 15 since its introduction in 2002 has proved anything but. The Supreme Court addressed s 15 in Scott v Williams but there are five separate judgments and even the majority judgments of Arnold, Glazebrook JJ and the Chief Justice have slightly different approaches.2

[4] Ms McCabe for Mr Gosbee submits that the leading authority in respect of causation under s 15 is not Scott but the Court of Appeal decision of X v X.3 This is because the issue in Scott was one of quantum only, the parties having agreed that there was disparity caused by the division of functions within the relationship. In short, Ms McCabe argues that the discussion on causation was obiter as jurisdictional threshold was not strictly in issue; only the second stage assessment of the discretionary quantum exercise was properly in issue. However, it is also apparent that causation and quantum are distinctly interwoven concepts in s 15 and all the judgments set out guiding principles on the threshold causation test in their assessment of quantum. It follows that Scott provides the most authoritative guidance, despite the

1 Gosbee v Gosbee [2019] NZFC 2175.
2 Scott v Williams [2017] NZSC…

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 Gosbee v Gosbee

Details

AGLC: Gosbee v Gosbee [2020] NZHC 1001
Case: [2020] NZHC 1001
Decision Date: 14 May 2020

CaseChat Overview and Summary

In Gosbee v Gosbee, Vivienne Helen Gosbee (Appellant) appeals a Family Court decision declining her claim for compensation under section 15 of the Property (Relationships) Act 1976 (the Act) while Carl Henry Gosbee (Respondent/Cross-Appellant) cross-appeals the Family Court's decision that half of the capitalised value of his United Kingdom Local Government Pension Scheme (Pension Scheme) is to be paid to Ms Gosbee now rather than in 2034 when he is eligible for a lump sum payment and annual benefits. The essential question in this appeal is whether the majority’s ‘working assumption’ that division of functions in the relationship was the cause of disparity was rebutted or displaced in whole or in part. If not displaced in whole, how should the Court exercise its discretion if multiple factors explain the economic disparity? The court found that the working assumption has been partially but not wholly displaced and that there is jurisdiction to make a compensation award. It must also follow that compensation for the full extent of the disparity, when the division of functions is not responsible for the full extent, would lead to an unjust result. The court found that the portion of disparity attributable to the division of functions is in the range of 15-20 percent. Even on Ms Gosbee’s own analysis this would result in a lump sum payment in the range $82,000 - $110,000 as opposed to the $550,000 she seeks. The more likely range once those contestable factors are resolved is $40,000-$50,000. The court dismissed the appeal and declined to make an order for compensation under s15 of the Act.

Orders