Gould (aka Timm) v Timm - [2013] NZHC 92

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-569 [2013] NZHC 92

BETWEEN JANE ELIZABETH GOULD (AKA JANE ELIZABETH TIMM)
Plaintiff

ANDCHARLES VICTOR TIMM Defendant

Hearing: 28 January 2013

Appearances: J Duckworth for the Plaintiff
C V Timm in person

Judgment: 7 February 2013

JUDGMENT OF ASSOCIATE JUDGE BELL

This judgment was delivered by me on 7 February 2013 at 5:00pm
pursuant to Rule 11.5 of the High Court Rules.

...................................
Registrar/Deputy Registrar

Solicitors:
Wells & Co (James Duckworth) P O Box 38222, Howick, Auckland
Email: jamesduckworth@wellslawyers.co.nz

Copy for:
C V Timm, 71 Valencia Lane, RD3, Kerikeri.
Email: charles@thetimmcorp.co.nz

GOULD (TIMM)V TIMM HC WHA CIV-2012-488-569 [7 February 2013]

[1] Mrs Gould, the former wife of Mr Timm, sues him on an agreement under s 21A of the Property (Relationships) Act 1976. She claims payments of $416,500 and applies for summary judgment. For this judgment, I will call her Mrs Timm.

[2] The couple are English. They married in July 1985. They have three children, two of them grown up. They migrated to New Zealand and lived in Kerikeri. In England Mr Timm had been a financial adviser and through that occupation had become a shareholder (approximately 1 per cent) in Money Portal Ltd, a private English company.

[3] In May 2003 they formed a trust called the Amazonica Trust. The trust owns the Kerikeri property where they lived. In December 2003 they and the trustees signed a deed of acknowledgment of loan under which the trustees acknowledged their indebtedness to Mr and Mrs Timm for advances of $675,000. The deed provided that the loan was repayable on 13 May 2033. Under clause 5 the trustees were not under any personal liability or obligation under the deed. The remedies of Mr and Mrs Timm as lenders were limited to the assets of the trust for the time being in the hands of the trustees of the trust. Originally KBH Trustees Ltd had been a trustee, but it later resigned, leaving only Mr and Mrs Timm as trustees.

[4] They separated on 13 December 2006. Mr Timm continued living in the trust property at Kerikeri. In about May 2007 they instructed lawyers. There were negotiations which led to the separation and relationship property agreement of
6 November 2008.

[5] The assets for division were the debt owed by the trust (now reduced to

$513,000 by debt forgiveness), Mr Timm’s shares in Money Portal Ltd, his shares in Crafty Plants Ltd (which ran a small horticulture operation on the Kerikeri property), insurance policies, bank accounts, motor vehicles and other family chattels.

[6] The parties had divided family chattels. The agreement provided that

Mr Timm was to keep his Crafty Plants Ltd shares (which were of little value), his

motor vehicle, life insurance, and bank accounts in his name, and his half share of the debt owed by the Amazonica Trust. Mrs Timm would keep her motor vehicle, life insurance and bank accounts in her name. In addition, the agreement provided:

6.2Jane will…

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.

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Details

Case: [2013] NZHC 92
Decision Date: 7 February 2013

CaseChat Overview and Summary

In Gould v Timm, Mrs Timm sued Mr Timm on an agreement made under s 21A of the Property (Relationships) Act 1976. The agreement provided for a payment of $416,500 from Mr Timm to Mrs Timm. She applied for summary judgment. The High Court was required to decide if the application was invalid for procedural defects, if the agreement bound the trustees of the Amazonica Trust, if the agreement affected the obligation of the trustees under the deed of acknowledgment of loan, if the amount owing by the trust was $109,468.40 or $116,500, if Mr Timm received adequate legal advice and if the agreement should be set aside for serious injustice. The court found that the application for summary judgment was valid. The relationship property agreement bound the trustees of the Amazonica Trust. The agreement did not change the obligation of the trustees under the deed of acknowledgment of loan. The amount owing by the trust was $116,500. Mr Timm received adequate legal advice. The agreement should not be set aside for serious injustice. The court ordered that Mrs Timm recover judgment against Mr Timm as trustee for $109,468.40 plus interest and costs. The summary judgment application against Mr Timm personally was dismissed. The case continued as a standard defended proceeding.

Orders