Gould v Timm - [2013] NZHC 2743

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-000569 [2013] NZHC 2743

BETWEEN JANE ELIZABETH GOULD Plaintiff

ANDCHARLES VICTOR TIMM Defendant

Hearing: 5 August 2013

Appearances: J R Duckworth for Plaintiff
R C Mark for Defendant

Judgment: 21 October 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 21 October 2013 at 4.30 pm
pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date………………………

GOULD v TIMM [2013] NZHC 2743 [21 October 2013]

Introduction

[1] Ms Gould sues her former husband, Mr Timm, on an agreement reached between then under s 21A of the Property (Relationships) Act 1976 (the PRA). On
7 February 2013 she obtained (summary) judgment for approximately $110,000 owing under that agreement but Associate Judge Bell declined to grant summary judgment on the further $300,000.1

[2] There is no dispute by Mr Timm that the further $300,000 is owing on the face of the s 21A agreement (the agreement). However he seeks to defend this aspect of Ms Gould’s debt claim on the grounds that the agreement should be set aside either “wholly or in part” under s 21J of the PRA on the grounds that giving effect to it will result in serious injustice. The serious injustice relied upon essentially comprises the inequality that has arisen as a result of subsequent events and the resulting hardship to Mr Timm.

Background

[3] Mr Timm and Ms Gould are English. They married in July 1985. They have three children, two of them grown up. In 2003 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 one per cent) in Money Portal Ltd, a private English company.

[4] In New Zealand, the parties formed a family trust called the Amazonica Trust. Upon the sale of their home in the United Kingdom, and other realisable investments, the parties advanced $675,000 to that trust.

[5] The trust then purchased a property at Valencia Lane in Kerikeri, which became the family home. The couple formed a company called Crafty Plants Ltd which operated an orchid business. An orchid greenhouse was built on the trust
property and the house extended.

1 Gould v Timm [2013] NZHC 92. The $110,000 was owed by Mr Timm as trustee of his family trust.

[6] Mr Timm and Ms Gould parted ways in December 2006.

[7] Prior to their separation, between 2003 and 2006, the parties had gifted back to the trust $162,000 of the original settlor loan. Thus, at the time of separation, the balance of the settlor loan owed by the family trust to the parties was $513,000.

[8] The relationship property agreement was signed in November 2008. Both parties received independent legal advice. There is no longer any issue about that.

[9] 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…

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 Gould v Timm

Details

AGLC: Gould v Timm [2013] NZHC 2743
Case: [2013] NZHC 2743
Decision Date: 21 October 2013

CaseChat Overview and Summary

The case of Gould v Timm, heard by Justice Ellis, involves a dispute over a settlement agreement reached between the former spouses under the Property (Relationships) Act 1976 (PRA). Jane Elizabeth Gould (Ms Gould) sued her ex-husband, Charles Victor Timm (Mr Timm), for $300,000, part of an agreement made under s 21A of the PRA. The court had already ruled in Ms Gould's favor for an amount of approximately $110,000, but Associate Judge Bell had declined to grant summary judgment for the additional $300,000. Mr Timm sought to have the agreement set aside under s 21J of the PRA, arguing that enforcing it would result in serious injustice due to the subsequent devaluation of assets and financial hardship.

The court's primary legal issue was whether it had jurisdiction to set aside the agreement and if it should do so based on the grounds of serious injustice. The court analyzed the statutory provisions under s 21J and s 21M of the PRA, which allow for setting aside agreements if they would cause serious injustice. The court also considered procedural aspects, including the requirement to apply to the Family Court and the time limits for such applications. The court found that Mr Timm had not made a timely application to the Family Court, and therefore, it lacked jurisdiction to set aside the agreement. Even if it had jurisdiction, the court would not set aside the agreement because the factors in favor of enforcing it outweighed the hardship Mr Timm would face.

In conclusion, Justice Ellis ruled that Mr Timm had no defence to Ms Gould's claim. The court determined that Mr Timm was contractually bound to pay the $300,000, and that the court did not have the jurisdiction to set aside the agreement. Even if it did, the court would not have set it aside due to the significant factors in favor of enforcing the agreement. Therefore, Mr Timm was ordered to pay the $300,000 to Ms Gould, along with interest at a rate of five per cent per annum from 7 November 2008 to the date of judgment, and Ms Gould was entitled to her costs on a 2B basis.

Orders