Greig v Hutchison

Case

[2015] NZHC 1309

10 June 2015

No judgment structure available for this case.

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000301 [2015] NZHC 1309

BETWEEN

MS GREIG

Appellant

AND

MR HUTCHISON First Respondent

MRS HUTCHISON Second Respondent

MR HUTCHISON AND MS CHAPMAN AS TRUSTEES OF THE HUTCHISON TRUST

Third Respondent

CIV-2014-409-000302

BETWEEN  MR HUTCHISON First Appellant

MR HUTCHISON AND MS CHAPMAN AS TRUSTEES OF THE H TRUST Second Appellant

ANDMRS HUTCHISON First Respondent

MS GREIG

Second Respondent

Hearing: 23 April 2015

Appearances:

S N van Bohemen for Mr Hutchison
J H Wren for Ms Greig
J V Ormsby, A Bayliss and M Prendergast for Mrs Hutchison

A M Corry for Trustees of the H Trust

GREIG v HUTCHISON [2015] NZHC 1309 [10 June 2015]

Judgment:                10 June 2015

JUDGMENT OF GENDALL J

Table of Contents

Para No

Introduction [1]
Background facts [3]
Approach on appeal [10]
These appeals [12]
Substantive appeal by Mr Hutchison, Ms Greig and the H Trust [18]
(A) The De Facto Relationship Issue [19]
Lack of financial dependence/interdependence [33]
Public image – did Ms Greg and Mr Hutchison present themselves as a couple to the world? [42]
Did  the  Judge  misdirect  himself  on  the  law  as  to  contemporaneous relationships? [51]
Did the Judge fail to give proper weight to the six months alleged exclusive de facto relationship in 1986? [77]
Conclusion on de facto relationship issue [81]
(B) The Realisation Issue [84]
Was the Family Court wrong to fix a value for the shares in the companies rather than to order a sale of the businesses? [84]
(C) The Valuation Issue [96]
(D) The Section 44C Issues – H Trust’s liability? [106]
(a)  Order   16(b)(i)   compensation   for   Glenda   Drive,   Queenstown, Kaipapa 2 and […] Main Road, Blenheim properties [107]
(b)  Order  16(b)(ii)   Compensation  for  Cashmere  Road,  Christchurch property [117]
(E)  The Section 44C Issues – Was the quantum of compensation payable pursuant to s 44C fixed by the Judge wrong? [124]
Mrs Hutchison’s cross appeal [132]
Possible transfer to Mrs Hutchsion of ownership of Kaipapa 2? [134]
Family Court’s refusal to treat the incentive points earned by Mr Hutchison post-separation as relationship property? [142]
Summary and conclusions [161]
Outcome [162]
Orders [163]
Costs [166]
The Stay [168]

Introduction

[1]      This case involves a number of appeals and a cross-appeal from decisions of the  Family  Court  with  respect  to  protracted  relationship  property  proceedings initiated in 2008.  One of the principal issues raised here concerns whether a husband and  his  long-serving  employee  of  some  27  years  were  in  a  qualifying  de facto relationship contemporaneous with his 47 year marriage (which finally ended in

2007).  If so, relationship property implications arise in relation to this in terms of the Property (Relationships) Act 1976 (the PRA).

[2]      After a trial occupying almost two weeks the Family Court found, in the decision which is the subject of this appeal, that there was no qualifying de facto relationship.  If it erred in this finding then, given that the PRA recognises there may be more than one claim to relationship property from contemporaneous or successive relationships, it follows necessarily that issues will arise over the actual property division between husband and wife as ordered by the Family Court judgment under appeal.

Background facts

[3]      The present appeals are from a judgment of Judge Walsh in the Family Court at Christchurch dated 17 April 2014.1     The judgment related to two separate relationship property claims brought against a husband, one by a wife, and the second by an alleged de facto partner, which for convenience were heard together in the Family Court. The various appeals to this Court were also heard together.

[4]      The husband here, Mr Hutchison, and the wife, Mrs Hutchison, were married in 1960 when they were aged 17 and 16 respectively.  Their marriage relationship

1      [2014] NZFC 2895

continued for 47 years until in 2007 they separated.    In 1965 they purchased their first bach in the Malborough Sounds, Kaipapa No. 1 (Kaipapa 1) and in 1973 they purchased their home at […] Christchurch, which remained their family home throughout the duration of their marriage.

[5]      For the first 11 years of their marriage Mrs Hutchison worked until they had children.  Their three children are […], born in […], […] born in […] and […] born in […].  From modest beginnings, Mr and Mrs Hutchison built up substantial family assets.    In  particular,  a  […]  business  was  acquired,  successfully developed and expanded over the years.

[6]      During their marriage, initially unknown to Mrs Hutchison, Mr Hutchison commenced a relationship in the nature of an affair with Ms Greig around 1980.

[7]      The evidence before the Family Court indicated that throughout his marriage to Mrs Hutchison, Mr Hutchison also had other sexual relationships, some in the nature of ongoing affairs, with other women.   Mrs Hutchison was unaware of all these other relationships at the time they occurred.  It seems that when confronted about these by Mrs Hutchison, Mr Hutchison always denied the affairs and this included his general denial throughout that he was having any affair with Ms Greig.

[8]      Ms Greig began working for Mr Hutchison’s company, […], in about 1981. She has remained working there ever since.    Her contact  and relationship with Mr Hutchison continued throughout.   Since his separation from Mrs Hutchison in

2007, Mr Hutchison and she have generally lived together.

[9]      In relation to the claim that Ms Greig and Mr Hutchison were in a de facto relationship  during  the  period  between  1980  and  2007,  broadly  speaking,  the position seems to be as follows:

(a)       Mr Hutchison had originally told Ms Greig in 1980 when they began their affair that he was single.

(b)This changed at some point after that time but their affair continued notwithstanding that Ms Greig was aware he was married.

(c)      Mrs Hutchison claims that Mr Hutchison did not live with Ms Greig (even when he separated from Mrs Hutchison in 2007) until after the Canterbury earthquakes destroyed his apartment.   This is with the possible exception of a period of up to six months in 1986 when Mrs Hutchison     and     Mr Hutchison     had     briefly     separated. Mr Hutchison, however, returned to live with Mrs Hutchison at the end of this six months period.

(d)Mr Hutchison’s affair with Ms Greig, according to Mrs Hutchison, was   clandestine.      It   took   place   in   early   mornings,   or   when Mr Hutchison left family holidays temporarily to return for one or two days “work”, or when he and Ms Greig travelled out of Christchurch, generally on company or related business.

(e)      Throughout, Mr Hutchison had always denied having an affair with Ms Greig until his final separation from Mrs Hutchison in 2007.  And indeed,   when   confronted   with   the   affair   by   Mrs   Hutchsion, Mr Hutchison   had   Ms   Greig   deny   its   existence   directly   to Mrs Hutchison in a meeting he had arranged at the family home.  This occurred in about 1986.

(f)      One particular event appears to indicate how far Mr Hutchison would go in all of this.  On this occasion in 1998, Mr Hutchison represented to Mrs Hutchison that he was taking part in the Sydney to Hobart Yacht Race and he even purchased significant wet weather yachting gear to reinforce this fact.   He was in fact spending a holiday with Ms Greig in Perth at the time.

(g)According  to  Mrs  Hutchison,  the  claim  by  Mr  Hutchison  and Ms Greig in  this  proceeding that  they had  a de facto  relationship surfaced only very late in the piece around 2011 or 2012.  And this

occurred, it is said, only once it became convenient as a trial tactic here, specifically to assist Mr Hutchison in opposing Mrs Hutchison’s relationship property proceedings. These proceedings had been issued in 2008 and culminated in the Family Court’s substantive decision.

(h)Mrs  Hutchsion  maintains  it  is  noteworthy  that  throughout  this litigation  (until  its  final  stages)  Mr  Hutchison  insisted  that  she (Mrs Hutchison) should receive half the relationship property.  To this end  Mrs  Hutchsion  highlights  the  comment  in  Mr Hutchison’s narrative affidavit dated 4 September 2008 where he deposes:

I acknowledge that [Mrs Hutchison] and I are entitled to an equal share of our relationship property.

(i)Mrs Hutchison contends the evidence here makes it clear that the very late introduction of this possible de facto claim by Ms Greig was simply a ploy and a scare tactic by Mr Hutchison.   In fact on the evidence, she says, even Mr Hutchsion himself deposes that it was a “tactic” and that “Plan B” which involved this tactic was simply to “scare”  Mrs  Hutchison  into  settling  relationship  property  matters under negotiation at that point.

(j)       The contentions noted in para [9](g), (h) and (i) are contested by

Mr Hutchison and Ms Greig as I note below.

(k)Indeed, Ms Greig’s position which was advanced in the appeal before me was a simple one.  She confirmed that in this proceeding she was pursuing her entitlement and advancing her position on the basis that she was in a longstanding de facto relationship with Mr Hutchison. She contended their relationship was a devoted, mutually benefitting one in which, in particular, she had a strong focus and passion for the businesses  of  [the  companies],  plus  other  factors  which  she  and Mr Hutchison enjoyed as a shared life together.

(l)Ms Greig rejects any inference or assertion first, that she came to manufacture this de facto relationship argument only late in the piece, secondly, that she colluded with Mr Hutchison on this, and thirdly, that  she had  done so  simply to  preserve  the business  interests  in Mr Hutchison’s hands.  Mr Hutchison adopts a similar position.

(m)Counsel for both Mr Hutchison and Ms Greig before me noted, quite properly, that the law allows two contemporaneous relationships to exist and continue at the same time.  They went on to note obviously that   this   might   include   a   marriage   such   as   that   of   Mr   and Mrs Hutchison and the alleged de facto relationship of Ms Greig and Mr Hutchison.    On  this,  the  position  of  both  Mr  Hutchison  and Ms Greig is that in the Family Court Judge Walsh placed too much weight  on  the  marriage  relationship  between  Mr  Hutchison  and Mrs Hutchison and therefore was wrongly influenced to conclude that their relationship was not a de facto one.   Before me counsel for Ms Greig, Mr Wren, also contended, again quite properly, that no moralistic argument  relating to  the  difference  between  living in  a marriage relationship and one which was in the past described as “living in sin” (and now is an accepted de facto relationship) was appropriate here.  He noted that both legally and morally, previously accepted norms along these lines were no longer appropriate today.

(n)In  suggesting  that  Judge  Walsh  was  in  error  in  failing  to  place sufficient weight on a number of specific factors outlined in s 2D of the PRA, and thus refusing to make a finding that a de facto relationship   existed,   both   Mr   Hutchison   and   Ms   Greig   put considerable emphasis on a range of factors.   These were, first, the length of the relationship between Ms Greig and Mr Hutchison (said to have commenced in about 1980 and run ever since), secondly, the amount of time each working day and otherwise that Mr Hutchison and Ms Greig spent together, thirdly, their mutual commitment both to the business and to each other which necessarily involved an intertwining of their lives and, lastly, the degree of commitment that

Ms Greig in particular had to Mr Hutchison and their relationship and her willingness to share her life with him.

(o)On these aspects, counsel noted the choice made by Judge Walsh in his judgment to use a description for the nature of the relationship Ms Greig had with Mr Hutchison as being one of a “consort”.  The usual  definition  of  a  “consort”,  Mr Wren  says,  is  “a  partner  or spouse”.   By Judge Walsh using this description in his judgment, Mr Wren submits that, despite the Family Court’s conclusion to the contrary, it should follow logically that the nature of this relationship, being one similar to a marriage, must truly be seen as a de facto relationship in terms of s 2D of the PRA.

(p)Mr Hutchison and Ms Greig also maintained that, although there was an acceptance that Ms Greig’s relationship with Mr Hutchison was to be kept relatively discrete, and certainly secret from Mrs Hutchison, it was a relationship that had strong foundations in the business world and their combined work and association with […].   It is therefore said the relationship had a clear public aspect.

(q)It was further said that, although Judge Walsh analysed the position by finding that Mr Hutchison had two separate lives and tried to maintain his marriage to Mrs Hutchison throughout, he was wrong to ignore the fact  that  from  1980  to  2007  Mr  Hutchsion  continuously kept  his relationship with Ms Greig, and indeed that relationship has also continued post 2007.  Counsel suggest that Judge Walsh’s finding of Mr Hutchison’s desire to continue his marriage has simply weighed too heavily in any proper consideration of whether or not a de facto relationship could also be in existence.

(r)      Lastly, Ms Greig in particular says that, for at least 20 years running up to 2007, Mrs Hutchison was never involved to any extent with the […] business and rarely went to the business premises.   Ms Greig maintains that in contrast, she has always shown a major devotion and

commitment to Mr Hutchison and the business, and that she has also maintained an exclusive relationship with him.   Thus, in terms of commitment, Ms Greig suggests she has been entirely devoted and loyal to Mr Hutchison and his various businesses throughout.  Even if it was not possible to say that Mr Hutchison had a true 50/50 commitment to both the de facto relationship and his marriage at the same time counsel say this is not necessary in the prevailing circumstances here.   His   degree of commitment to his relationship with Ms Greig was such that clearly this was a de facto relationship in terms of s 2D of the PRA.

Approach on appeal

[10]     Appeals to this Court in respect of relationship property matters are general appeals.    In  the  Supreme  Court  decision  Austin  Nichols  & Co  Inc  v  Stichting Lodestar, 2 Elias C J described the approach to general appeals in these terms:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate court’s opinion is different from the conclusion of the Tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ...In such circumstances it is an error for the High Court to defer to the Lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than form its own opinion.

[11]     But before me all counsel recognised that appeals from a discretion are not always governed by the Austin Nichols approach.  In a decision in this court, Heath J referred to the Supreme Court’s decision and said in B v F [De Facto Relationship]:3

[7]       Application of the Austin Nichols principles is not altogether easy, in the context of appeals from the Family Court.  Many first instance decisions represent a mix of findings of fact (after seeing and hearing witnesses), the formation of an evaluative judgment and the exercise of statutory discretion. Sometimes it is difficult to characterise a particular decision as evaluative, factual or discretionary in nature.

[8]       I approach this appeal on the following basis:

2      Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

3      B v F [De Facto Relationship] [2010] NZFLR 67 (HC).

(a)       First,   I   must   take   account   of   the   advantage   that Judge Twaddle had of hearing and seeing the witnesses give evidence before him:  see Austin Nicholls at para [13].

(b)       Second, to the extent that the Judge exercised any discretion in reaching his decision, I must determine whether those discretionary decisions were or were not open to him, based on May v May [1982] 1 NZFLR 165 (CA), and Blackstone v Blackstone [2008] NZCA 312 at para [8].

Otherwise, I am free to reconsider the Family Court’s decision and substitute my own view on questions of fact and evaluation, if I were convinced that the first instance decision was wrong.

I adopt the approaches as noted at para [10] above and in this para [11].

These appeals

[12]     I turn now to outline the appeals and cross-appeals which are the subject of this judgment.   They relate to a decision of Judge Walsh in the Family Court at Christchurch dated 17 April 2014 on the substantive claims under the PRA together with a later decision of Judge Walsh as to costs on the earlier hearings, that decision being dated 26 March 2015.

[13]     The various appeals and the cross-appeals before me are:

(a)       An  appeal  by  Mr  Hutchison  against  aspects  of  the  substantive judgment of Judge Walsh specifically raising a number of questions:

(i) The De Facto Relationship IssueWas Judge Walsh wrong to decide  that  Mr  Hutchsion  and  Ms Greig  were  not  in  a qualifying de facto relationship at any time in the period 1980 to 2007?

(ii)The  Realisation  Issue  –  Was  Judge  Walsh  wrong  in  his decision to fix a value for the shares in [the companies] and not to order a sale of those assets or the businesses on terms?

(iii)The Valuation IssueIn any event, was Judge Walsh wrong to fix a value of […] for the shareholding in [the companies]?

(iv) The  s  44C  Issue  –  Was  Judge  Walsh  wrong  to  order Mr Hutchison to pay compensation to Mrs Hutchison pursuant to s 44(c) Property (Relationships) Act 1976 (PRA):

1.  In the sum of $1,187,241 in respect of property transferred to the H Trust;

2.  In the sum of $215,538 in respect of property transferred to the [Q] Trust?

(b)An appeal by Ms Greig from the decision made pursuant to s 2(d) of the  PRA (in  line  with  Mr  Hutchison’s  appeal  noted  at  [12](a)(i) above).   This again was directed to the question whether or not the relationship between she and Mr Hutchison was a qualifying de facto relationship at any time during the period 1980 to 2007.

(c)       A Further s 44C IssueAn appeal by the trustees of the H Trust against the decision that the H Trust was jointly and severally liable with Mr Hutchison to pay to Mrs Hutchison the sums of $1,187,241 and $215,538 referred to in paragraph [12](a)(iv) above pursuant to s

44(c) of the PRA.

(d)A cross-appeal by Mrs Hutchison with respect to two determinations made by Judge Walsh which she says were wrong:

(i)That the Family Court did not have jurisdiction to transfer a second  Marlborough  Sounds  bach  property  owned  by  the H Trust known as Kaipapa Bay No. 2 into Mrs Hutchison’s name – she seeks instead that this property be transferred to her rather than ordering payment to her of a cash sum to reflect her interest in this property;

(ii)That certain incentive points accumulated by Mr Hutchison post-October    2007    were    the    separate    property    of Mr Hutchison.

(e)      An appeal by Mr Hutchison against Judge Walsh’s costs decision in the  Family  Court  requiring  him  to  pay  costs  of  approximately

$300,000 to Mrs Hutchison on the substantive hearing.

(f)      An appeal by Ms Greig against Judge Walsh’s costs decision in the Family Court requiring her to pay costs of approximately $50,000 to Mrs Hutchison with respect to the substantive hearing.

[14]     Finally, I need to record that an additional application was made by both Mr Hutchison and Ms Greig for a stay of Judge Walsh’s orders in his substantive judgment for:

(i)The transfer of shares in [the companies] to Mrs Hutchison, effectively by way of security for further payments due to her under the judgment;

(ii)      Payment  by  Mr  Hutchison  of  the  sum  of  approximately

$6 million due to Mrs Hutchison on 17 June 2015;

(iii)Payment first, by Mr Hutchison of the $300,000 approximately costs awarded against him in the costs judgment and secondly, by Ms Greig of the $50,000 approximately costs in the costs judgment against her.

[15]     At the outset of the hearing of these matters it became apparent that the appeals relating to the costs decision against both Mr  Hutchison and Ms Greig outlined at paras [12](e) and (f) above were not at that point to be argued and heard. They would simply be adjourned for consideration after my substantive decision on the other appeals.  An order was made therefore adjourning those two costs decision appeals on that basis.

[16]     Further, the application by Mr Hutchison and Ms Greig for a stay referred to at para [14] above was addressed at the conclusion of the substantive hearing on

23 April 2015.  My oral decision for the parties at that time granted the stay sought for a short period upon conditions outlined in that decision.

[17]     This judgment therefore addresses the various appeals and the cross-appeal noted at paras [13](a), (b), (c) and (d) above.   All the other Family Court orders challenged in Mr Hutchison notice of appeal, bar one, are ancillary to the de facto relationship issue.   The incidental appeal points, as I understand it, are generally subsumed in Mr Hutchison’s four main appeal points noted at 13(a) above and are addressed where relevant as part of the overall consideration of those areas.  If this Court on the present appeal reaches a different determination from the Family Court on the de facto relationship questions, but not otherwise, then those other orders will need to be reviewed, depending on the determination of:

(a)       The  property  attributable  to  the  marriage  of  Mr  Hutchison  and

Mrs Hutchison;

(b)      The  property  attributable  to  the  de  facto  relationship  between

Mr Hutchison and Ms Greig; and

(c)       How that property is to be properly divided between the de facto relationship and the marriage?

Substantive appeal by Mr Hutchison, Ms Greig and the H Trust

[18] I turn now to address the substantive appeals, noted at [13](a), (b) and (c) above brought by Mr Hutchison, Ms Greig and the H Trust. I will address each appeal aspect in the order outlined in [13] above. In doing so, I defer a consideration of Mrs Hutchison’s cross-appeal noted at [13](d) until later in this judgment at [132].

(A)      The De Facto Relationship Issue

[19]     As I have noted, both Mr Hutchison and Ms Greig say that Judge Walsh was wrong to find that they did not live in a de facto relationship between 1980 and 2007.

It is notable in the present case that the appeal on this aspect generally does not involve a challenge to findings of fact or credibility made by the Family Court.

[20]     Essentially,  the  appeal  against  the  decision  that  no  de  facto  relationship existed is fourfold:

(a)       The Family Court erred in its evaluation of two factual matters:

(i)Whether or not Mr Hutchison and Ms Greig were financially interdependent; and

(ii)Whether or not there was a public face to their relationship; i.e. whether Mr Hutchison and Ms Greig presented themselves as a couple to the world.

(b)Judge Walsh in the Family Court misdirected himself on the law as to what is required to find the existence of a de facto relationship; and erred  in  law  by  applying  a  comparative  approach  between  the marriage and the de facto relationship (placing undue weight on the existence of the marriage) as opposed to a singular evaluative assessment of the de facto relationship;

(c)      Judge Walsh failed to address the legal consequences of the exclusive de   facto   relationship   which   existed   between   Ms   Greig   and Mr Hutchison in 1986; and

(d)      Consequently    Judge    Walsh’s     evaluation    of    whether    or    not

Mr Hutchison and Ms Greig were in a de facto relationship between

1980 and 2007 was wrong.

[21]    On these aspects, Judge Walsh made a number of factual findings and evaluations which he indicated supported his view that no de facto relationship existed in the relevant period.  In particular these were:

[362]    Having reviewed all of the evidence, it is my finding that M had two very separate lives: one life at home and one life at work. Given the separate lives and the fact that despite all events M continually tried to maintain his marriage with L, I find that a contemporaneous de facto relationship with B has not been proven.

[363]    The finding of no de facto relationship is on that basis that:

(a)       Each   of   the   parties   maintained   their   own   household, independent of the time that they spent together;

(b)       The parties agree that they maintained a sexual relationship for the whole of their relationship;

(c)      B’s relationship with M was exclusive of other relationships

but M’s relationship was not exclusive to B or L;

(d)       The parties travelled overseas together in what was, at least predominately, trips with business components;

(e)      The parties did not share expenses while travelling; (f)      There was no financial interdependence;

(g)       The public perception of the parties as a couple was strongly associated  in  their  business  relationship  rather  than  a personal relationship;

(h)       M has made no financial provision for B in his Will made approximately three years after his separation. Similarly, B, apart from a bequest of a painting has made no provision for M in her Will.

[364]    I find, that the relationship between M and B was intended by them to remain hidden from L and the children. M was acutely aware that L would end the marriage if she discovered that the relationship between M and B had been resurrected.

[365]    I find, unequivocally that this was not a situation where L turned a blind eye to the relationship between her husband and B. I make that finding after reflecting on the lengths M went to in 1998 to deceive L about going to Sydney for the Sydney to Hobart Yacht Race (eg M’s acquisition of wet weather ocean-going gear).

[366]    After weighing all matters I find that, apart from the brief separation in 1986, B and M were not in a de facto relationship until after October

2007. I find that M has taken for granted B’s fervour and enthusiasm as a

hard working loyal employee, (for which in the end she was well remunerated) as well as M’s consort, but M never took the step of ending the

relationship  with  L.  M  had  ample  opportunity  over  many  years  to

demonstrate a commitment to leading a fully shared life with B but that never occurred. On both occasions that L and M separated, it was L who

initiated the separations. M’s primary commitment was to his wife, L and the

children of the marriage. I find the fact that B was vehement that she was

financially independent of M compelling evidence that she and M were not in a de facto relationship before October 2007.

[22]     Considering all these matters in the round, in summary Judge Walsh made principal findings of fact which he said weighed against the de facto relationship:

(a)       Mr Hutchison and Ms Greig, were financially independent; (b)         they did not present themselves as a couple to the world;

(c)      Mr Hutchison’s primary commitment was to Mrs Hutchison and throughout he continually tried to maintain his marriage to her;

(d)Ms Greig’s commitment to Mr Hutchison was not matched by his commitment to her;

(e)      although acknowledging the limits of a common residence in the circumstances of contemporaneous relationships such as had existed here, he found that Mr Hutchison and Ms Greig did not have a common residence, and apart from a short period in 1986, they maintained separate homes until well after October 2007;

(f)      Mr Hutchison and Ms Greig did not acquire any joint property during the course of their relationship; and

(g)generally there was a lack of commitment on the part of Mr Hutchison particularly, and perhaps to a lesser extent by Ms Greig, to a shared life together as a couple.

[23]     In addition, an important aspect in Judge Walsh’s decision appears to be his findings as to the credibility and reliability of the parties and issues over whether this should carry significant weight.

[24]     These  findings  as  to  credibility  and  reliability  included  the  following comments by Judge Walsh:

[164]    I find that L [Mrs Hutchison] was straight-forward and credible. She gave her evidence in a measured manner.

[231]    I find the evidence of M [Mr Hutchison] and B [Ms Greig], at times, was tailored to suit a common purpose, namely that they were in a de facto relationship from 1980. M and B portrayed a consistent theme, namely, they were not having an affair but that they were in a de facto relationship.

[232]  M is a likeable character and is a very successful self-made businessman but, as M’s evidence unfolded, following cross-examination, I was left with a sense that M is also ruthless and self-centred, and prone to giving self-serving evidence to best suit his case.

[233]    Similarly, I find B’s evidence to be self-serving and, at times, she overstated and embellished her position in order to present a unified front with M about them being in a long-term committed de facto relationship.

[235]    I find that M and B were acutely conscious of the interpretation that

they wished the Court to place on the status of their relationship…

[236]    I find M and B adopted a convenient position to suit their respective

cases and this was exposed during M’s cross-examination…

[241]    …I find the above responses during cross-examination reveal the extent to which M was prepared to embroider the evidence to suit his case that he and B were in a committed relationship.

[242]    In my view M’s credibility and integrity was also exposed by the manner in which he attempted to conceal an interest in a significant asset, namely the Incentive Scheme Payments.

[250]    Unfortunately, there has been a consistent theme, since the filing of L’s proceedings, of M (at times) being obstructive and employing delaying strategies. It is the cumulative effect of M’s conduct as well as seeing him give evidence that leads me to the conclusion that, in many aspects he is insincere and not credible…

[25]     In  Rae  v  International  Insurance  Brokers  (Nelson  Malborough)  Limited

Thomas J observed:4

The advantages possessed by the trial judge in determining questions of fact are manifest.  Of paramount importance, of course, is the fact the trial judge hears and sees the witnesses first-hand over a matter of days, or even weeks,

4      Rae v International Insurance Brokers (Nelson Marlborough) Limited [1998] 3 NZLR 190 (CA)

at 199.

of taking evidence.  He or she can form an impression of the reliability of witnesses and, where necessary, their credibility…As the evidence unfolds the  trial  judge  gains  an  impression  from  the  evidence  which  is  not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal.  The judge forms the perception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue.   The Judge perceives firsthand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.

An appellate Court has none of these advantages and must acknowledge that the Court at first instance is better placed to determine the facts…exceptional caution in departing from the trial judge’s findings of fact are therefore regarded as imperative.

[26]     Just as experienced Family Court Judges must determine the credibility and reliability of the parties before them (generally partners or spouses in the midst of a major dispute), the determination of an issue like whether or not a de facto relationship exists is the sort of question which is also the bread and butter of the Family Court.    Similar  sentiments,  although  in  a  different  relationship  property

setting,  were  expressed  recently by Woolford  J  in  Venter  v  Trenberth.5      There,

Woolford J commented that the case before him, which involved issues as to whether equal sharing of relationship property was repugnant to justice in terms of the PRA, was the sort of case which was the Family Court’s “bread and butter”.  In particular, he said that the High Court was generally not in a position to make a better assessment on issues such as this than the Family Court Judge.

[27]     Linked  to  these  issues,  to  an  extent,  is  an  ancillary  question  which Judge Walsh touched upon at paras [226] and [227] of his judgment.  This related to the possibility in this case of there being collusion, on the part of both Mr Hutchison and  Ms Greig,  to  defeat  or reduce Mrs  Hutchison’s  relationship  property claim. Related to this possibility were issues relating to the credibility of Mr Hutchison and Ms Greig.   On these aspects, Judge Walsh said that, although the possibility of collusion here could not be excluded, in giving his decision he stood back and objectively assessed the other facts as presented to the Court.

[28]     A further issue arose regarding the timing of Ms Greig bringing her claim under the PRA and potential issues of delay.   Ms Greig did not commence her

5      Venter v Trenberth [2015] NZHC 545.

proceeding until 2012, some four years after the dispute was first received by the Family Court.  Whilst there must be some concern over these aspects, in my view Judge Walsh acted properly when he said he did not regard this as overly significant in the overall scheme of things.  I leave this aspect on one side.

[29]     Turning now to the grounds upon which Mr Hutchison and Ms Greig appeal against Judge Walsh’s finding that the relationship of Mr Hutchison and Ms Greig in this period 1980 to 2007 was not a de facto relationship, these were in summary:

(i)Judge Walsh erred in two of his conclusions drawn from the facts established in the proceeding:   first that Mr Hutchison and Ms Greig were financially independent; and secondly that they did not present themselves as a couple to the world.  It is contended these conclusions are not sustainable on a proper analysis of all the evidence.

(ii)Judge Walsh misdirected himself on the law on de facto relationships.

(iii)Judge Walsh failed to give proper weight to the exclusive de facto  relationship  between  Mr  Hutchison  and  Ms  Greig  in

1986.

(iv)Judge  Walsh  applied  the  wrong  test  when  asking  himself whether or not there had been a de facto relationship between Mr Hutchison and Ms Greig between 1980 and 2007.

[30]     I will now turn to consider each of these grounds in turn.  But, in doing so, I will also address Mrs Hutchison’s submissions, the heart of which seem to be that the de facto relationship lacked the essential character of a life lived together as a couple.  Her grounds for asserting this can be summarised as follows:

(a)       it  lacked  the  character  of  exclusivity  –  it  lacked  mutuality  of commitment;

(b)      there was no time realistically to pursue the relationship;

(c)       the relationship was just one of business plus a sexual relationship;

(d)there was unequal commitment – Mr Hutchison did not have the same commitment to the relationship that Ms Greig had;

(e)       there was no financial dependence or interdependence between them; (f)      there was no public aspect to that relationship.

[31]     As an aside, I note here that there may have been some form of deeper relationship  between  Ms  Greig  and  Mr  Hutchison  for  a  time  in  1986  when Mr Hutchison was asked by his wife to leave the marital home and it is claimed he moved into Ms Greig’s home.  This, however, was for only about six months, after which he then moved back to the […] property.   Mrs Hutchison’s position is that thereupon, this “relationship” came to an end but Mr Hutchison and Ms Greig say it did not.

[32]     And lastly, on the issue of exclusivity, it is useful to remember that this is a requirement of legal marriage (to the extent that polygamy is illegal in this country) but it is not for a de facto type relationship.   On this, the PRA however clearly envisages contemporaneous relationships continuing at the same time.

Lack of financial dependence/interdependence?

[33]     On the issue of financial dependence or independence, it is clear from the evidence that  Mr  Hutchison  and  Ms  Greig operated independent  bank  accounts during this period 1980 to 2007, and did not acquire any assets jointly.  During the major part of this time, however, Ms Greig worked for […] and played a significant role in Mr Hutchison’s business.  Ms Greig and Mr Hutchison worked together daily. Without question they had a close relationship, at least in the nature of workmates, and perhaps also business confidantes.   On their evidence, clearly too they had a sexual relationship throughout this time.

[34]     In submissions advanced for Mr Hutchison it is contended that the evidence is clear that Ms Greig’s significant role in the company was such that a degree of the company’s success from its struggling early days should at least be attributed to her efforts.   This suggests, Mr van Bohemen contends, some degree of financial interdependence between Ms Greig and Mr Hutchison.

[35]     Next, Mr van Bohemen maintains that the finding that Mr Hutchison and Ms Greig had no jointly acquired property during this period and this therefore led to a finding of no financial interdependence, ignored the fact that Mr Hutchison deliberately chose to purchase a residential property in […] immediately adjacent to Ms Greig’s house some time during their relationship.  This purchase was clearly an issue between Mr and Mrs Hutchison when discovered.

[36]     On this aspect there can be no doubt that it was convenient for Mr Hutchison to own the neighbouring property to Ms Greig.   This, however, did not appear to carry great weight with Judge Walsh on the financial interdependence question.   I have  no  reason  to  doubt  that  he  was  otherwise  than  correct  in  this  approach. Certainly, I am satisfied here that this […] property was not purchased together, nor was any other property jointly purchased.   Further, it is clear that no real intermingling of their financial affairs took place.

[37]     As to the reasons for Ms Greig’s position of some seniority at […], said by Mr van Bohemen  to  be  solely  or  principally  because  of  her  relationship  with Mr Hutchison, again some issue must be taken with that claim.  If, on the one hand, Ms Greig was a valuable staff member and an integral part of the success of […] as Mr Hutchison has appeared to suggest, then this alone would account for her being provided with seniority in the company’s business, no doubt to retain her services.  I do not ignore what clearly could have been a further issue which may have had some influence upon Mr Hutchison in providing a senior position to Ms Greig.  This is the fact that it was convenient and advantageous to him that she was nearby on a daily basis, if for no other purpose than to maintain their sexual relationship.   But it is significant too, as Judge Walsh found, that her salary paid by […] to maintain this seniority was substantial.

[38]     And, concerning any suggestion that the salary paid to Ms Greig may have been excessive for her role and this by implication connoting an element of financial interdependence between she and Mr Hutchison, there was no evidence before the Court, as I understand it, that would support this.

[39]     Finally, at [363](h) in his judgment, Judge Walsh noted, quite significantly in my view, that Mr Hutchison had made no provision for Ms Greig in his will made in about 2010, approximately three years after his separation. And similarly, apart from a bequest of a painting, Ms Greig had made no provision for Mr Hutchison in her will. All of this troubled Judge Walsh in his decision and, as I see it, rightly so.  The conscious decision of Mr Hutchison and Ms Greig to make no significant provision in their respective wills for each other might be seen at one level as somewhat unusual.   I say this bearing in mind their claims that they did have a committed relationship to each other throughout.

[40]     On all these aspects, in my view Judge Walsh did not err in finding that the relationship between Mr Hutchison and Ms Greig lacked any significant degree of financial dependence or interdependence as set out in s 2(d) of the PRA.  This case did  not  exhibit  any of  the  characteristics  often  found  in  other  situations  where de facto relationships have been said to exist, such as where property was jointly acquired or owned, where financial provision was made for a partner, or situations where housekeeping and other expenses were shared, and the like.

[41]     For  all  these  reasons  I  reject  this  contention  advanced  on  behalf  of

Mr Hutchison and Ms Greig.

Public image – did Ms Greig and Mr Hutchison present themselves as a couple to the world?

[42]     In  finding  that  there  was  no  qualifying  de facto  relationship  between

Ms Greig and Mr Hutchison, Judge Walsh said that relevant factors were that:

(a)       Mr Hutchison and Ms Greig did not present themselves to the world at large as a couple;

(b)those who were aware of their relationship were aware that it was to be kept a secret, and particularly a secret from Mrs Hutchison and Mr Hutchison’s children; and

(c)      Mr Hutchison and Ms Greig generally did not attend functions as a couple but simply as business colleagues.

[43]     Contentions advanced on this appeal for Mr Hutchison and Ms Greig are that these findings are contradicted by other prior findings Judge Walsh made.   These included,  for  example,  his  comments  at  [336]  of  his  judgment  which  included findings that:

(a)      members of Ms Greig’s running group considered them to be partners;

(b)      both Ms Greig and Mr Hutchison had relationships with each other’s

parents and Ms Greig’s family knew of the alleged relationship;

(c)      Mr  Hutchison  went  to  Greig  family  events,  such  as  weddings, birthdays and funerals;

(d)      they both attended public and business functions as a couple; (e)      one supplier thought Ms Greig was Mr Hutchison’s wife; and (f)      they wore commitment rings each had given to the other.

[44]     It is said also that Judge Walsh’s finding also disregards first, the involvement together of Mr Hutchison and Ms Greig at numerous […] events including conferences and overseas trips and, secondly, the evidence of Ms Greig’s brother, Mr […].   Addressing this last aspect first, Mr […]’s evidence was dismissed by Judge Walsh at para [329] when he said:

I put little weight on the evidence of WM (BM’s brother) because for 20 years he lived in Auckland, and furthermore BM only saw WM three or four times per annum when he came to Christchurch.

[45]     As to this criticism, it is suggested it is harsh and unjustified in that, even on Judge Walsh’s analysis, Ms Greig would have seen her brother some 60 to 80 times during the relationship with Mr Hutchison between 1980 and 2007.   It is claimed also that Mr […]’s evidence is effectively unchallenged here.  That may well be so, but as I see the position, it is but one aspect which in any event would simply be weighed in the balance.

[46]     On the broad issue of whether the Hutchison/Greig relationship was public, there can be no question that its existence throughout was kept from Mrs Hutchison and the children particularly, and those who it is perceived might have passed information on to them.

[47]     It is clear also that Judge Walsh found (and it is not effectively challenged in any real way) that throughout this period 1980 to 2007 Mr Hutchison especially made  substantial  and  continuous  efforts  to  keep  what  relationship  he  had  with Ms Greig secret from Mrs Hutchison (he says to preserve his marriage) and that he engaged in significant deceptive conduct on a number of occasions to achieve this purpose.

[48]     Whilst it does seem that Ms Greig may have been less concerned about maintaining this level of secrecy, I have little doubt that Judge Walsh’s finding was correct that throughout secrecy was a major concern for Mr Hutchison.

[49]     Even  accepting  that  members  of  Ms  Greig’s  running  group  may  have considered them to be partners, that Mr Hutchison attended various Greig family events, and that both Mrs Greig and Mr Hutchison had relationships with each other’s parents, none of this in my view is surprising or makes any crucial difference to Judge Walsh’s conclusion that they were not in a de facto relationship.  As I have already noted, the level of commitment of Mr Hutchison in particular was such that he insisted upon a large degree of secrecy throughout.  And, in any event, from his perspective, it is no doubt convenient that the longstanding business relationship between  Mr Hutchison  and  this  senior  employee,  Ms  Greig,  provided  ample explanation for their connection and the public and business functions they attended together.  Ms Greig may have thought that she and Mr Hutchison were presenting to

all but Mrs Hutchison as a couple, but I have no doubt that this position was not a mutual  one  shared  by  Mr  Hutchison,  who  insisted  on  maintaining  secrecy throughout. As I understand the position, Mr Hutchison was careful about who knew of  his  relationship  with  Ms  Greig  outside  of  it  being  as  a  business  partner  or associate.  He did not disclose the nature of this relationship to his lawyer or to his accountants.   It is hard to accept, it seems to me, therefore, that they would have been viewed generally as a couple. Although this is also a matter of degree certainly they would not have been seen as a couple by all of Mr Hutchison’s family including his children, the long-standing friends of the family and anyone having an acquaintance with Mrs Hutchison and the children.   And, as to the issue of their commitment rings, again there is no doubt that Mr Hutchison was secretive about wearing this ring and explained it was not a gift from Ms Greig but that he had simply received it as a sale gift when he purchased other items.  This is hardly the explanation one would expect if Mr Hutchison had wanted to present to the world that he and Ms Greig were a couple.

[50]     For all these reasons I find that Judge Walsh did not err in making the finding he did in this area.

Did   the   Judge   misdirect   himself   on   the   law   as   to   contemporaneous relationships?

[51]     On this aspect of their appeals, the submissions advanced for Mr Hutchison and Ms Greig are that Judge Walsh made a number of errors in his legal analysis here:

(a)       He misinterpreted and misapplied the High Court’s decision in DM v

MP (De Facto Relationship);6

(b)He failed to distinguish Jonah v White7  and incorrectly held that it was relevant;

(c)       He failed to adopt the approach of the High Court in Chapman v P;8

6      DM v MP (De Facto Relationship) [2012] NZHC 503; [2012] NZFLR 385 (HC).

7      Jonah v White [2011] FAM CA 221; [2011] 258 FLR 236.

(d)He  did  not  properly  apply  the  decisions  in  Scragg  v  Scott9   and Chand v Chand10  and, as a result of all the above, he applied the wrong  legal  test  to  determine  whether  or  not  Mr  Hutchison  and Ms Greig were in a de facto relationship

[52]     At the outset I need to say that in my view Judge Walsh did not misdirect himself or err in considering the existence or otherwise of a de facto relationship, and the relevance of Mr Hutchison contemporaneous marriage relationship.  On this, it is important to remember that given the property consequences that follow, this Court in  the past  has  made it  clear that  the threshold  required  to  establish  the existence of a de facto relationship is a high one.  A certain degree of rigour and some caution is required in carrying out an analysis of whether or not a de facto

relationship exists.11

[53]     Turning as a preliminary matter to the issue of whether undue or excessive weight was placed here upon the existence of Mr Hutchison’s marriage, it is useful to consider as Judge Walsh did the decision in this Court of Panckurst J in Public Trust v Cornelius.12    That case involved what was described as a “tangled relationship” and the capacity and inclination of one man to be involved in more than one personal relationship at a time.  In Cornelius, the respondent had relationships between two

women and two families (he had a child with each) and thus a “division of loyalties” in  considering  as  a result  the possibility that  the respondent  was  in  a  de facto relationship with either partner. At para [37] of his judgment, Panckhurst J stated:

In  my  view  the  present  case  demonstrates  why  the  evaluation  of  the existence of a de facto relationship must remain flexible and most of all, case specific.  Here it is common ground that the parties at least shared a common residence for a period of approximately 20 years.  They also shared the care and support of a child, and entered into a business relationship whereby they farmed a property on a co-operative basis.  But equally it is common ground that throughout the relevant timeframe D… was involved in a close personal relationship with J…, from which a child was born and that he was likewise involved in the upbringing of his son.

8      Chapman v P [2010] NZFLR 855 (HC).

9      Scragg v Scott [2006] NZFLR 1076 (HC).

10     Chand v Chand [2001] NZFLR 704 (FC).

11     B v F (De Facto Relationship) [2010] NZFLR 67 (HC) at [48].

12     Public Trust v Cornelius [2009] NZFLR 514 (HC).

[54]     Questions at the heart of that case were considered by Panckhurst J at para

[43] to be:

Did D… and X… commit themselves to a shared life or was their extended period of common residence born of convenience and their mutual commitment to [their daughter’s] welfare?  And was there scope for D… to commit himself to a shared life with the appellant, given his co-extensive relationship with J…?

[55]     Panckhurst J considered an important consideration under s 2D(2) PRA was whether there was a mutual commitment to a shared life.  In this regard he held at para [50]:

A significant indicator of the respondent’s commitment to his relationship with X… is obtained by considering the commitment he gave to his other relationship with J…

[56]     In  considering  these  matters,  in  Cornelius  Panckhurst  J  overturned  the decision of the Family Court and held that the respondent and the appellant (X) were not in a de facto relationship except for a brief period in the mid 1980s.

[57]     Clearly, as I see it, from decisions such as Cornelius, in situations where there are two relationships running contemporaneously, the Courts have held that, to assess the nature of those relationships, it is not necessary to view each in isolation and distinct from the other.  Rather, it is proper to have regard to one relationship to an extent when considering the nature of the other relationship.   In this regard decisions such as DM v MP,13   JAC v GCS,14   Jonah v White15 and Chapman v P16 would seem to usefully confirm this approach.  In doing so it will also be necessary however to properly consider:

(a)       Whether or not the two parties can be said to have “lived together as a couple”;

(b)      Whether or not there was a mutual commitment to a shared life; and

13     DM v MP [2012] NZHC 503 [2012] NZFLR 385.

14     JAC v GCS Family Court Dunedin FAM 2005-12-157, 28 September 2006.

15     Jonah v White [2011] FAM CA 221; [2011] 258 FLR 236.

16     Chapman v P [2010] NZFLR 855 (HC).

(c)      The degree of financial dependence or interdependence between the parties.

[58]     In his judgment in the present case, at no point did Judge Walsh hold that Mr Hutchison’s  marriage to  Mrs  Hutchison  provided a presumptive barrier  to  a finding that there was a de facto relationship between Mr Hutchison and Ms Greig. To  the  extent  that  submissions  advanced  to  me  on  behalf  of  Mr  Hutchison  or Ms Greig might suggest the opposite, in my view they are misconceived.

[59]     It needs to be acknowledged, of course, that this is not a case where up to

2007 the marriage between Mr and Mrs Hutchison was a legal relationship in name only.   Their marriage endured for the most part for 47 years, they maintained a mutual commitment to a shared life through being married and raising a family together, and they continued to share a family home together and all the public, social  and  family consequences  that  flowed  from that.    Mr  Hutchison it  seems maintained adamantly to his wife throughout that it was an exclusive relationship but, of course, he made no such similar commitment to Ms Greig. The evidence here is clear that his wishes were to maintain his marriage and to live at home with his wife, such was his ongoing commitment to that marriage.

[60]     It follows therefore in my judgment that Judge Walsh did not err in his findings that:

(a)      Mr Hutchison’s primary commitment was to Mrs Hutchison and he continually tried to maintain his marriage to her right up to their final separation, a separation which significantly came about at the instigation of Mrs Hutchison in 2007; and

(b)Ms Greig’s commitment to Mr Hutchison and her relationship with him was not matched by his commitment to her.

[61]     I turn now to consider a number of decisions referred to by Judge Walsh in his judgment which Mr van Bohemen, in particular, suggests were misapplied here.

DM v MP

[62]     At paras [29] and [30] of his judgment Judge Walsh referred to Miller J’s decision, where some observations were made about the definition of a de facto relationship and whether it was possible for a person to be in two relationships contemporaneously.  Mr van Bohemen suggested that these observations by Miller J must be seen in the context of the entire factual circumstances of the case DM v MP. Mr van Bohemen noted that the issue in DM v MP was the end date of a de facto relationship and not whether or not parties were in two de facto relationships contemporaneously.   The Court’s observations  on contemporaneous relationships therefore were obiter.

[63]     Whilst that may be the case, it is clear as I see it that Miller J in DM v MP understood that contemporaneous qualifying relationships could exist and the statements from his judgment quoted by Judge Walsh here correctly reflect the law and appropriate considerations as to whether or not two people “lived together as a couple”.

[64]     In my view Judge Walsh did not err in his reference to or application of the observations made in DM v MP.

Jonah v White

[65]     At para [32] of his decision Judge Walsh described Jonah v White as “a factually similar case” to the present, but with one important difference being that the man in that case denied the existence of a de facto relationship.   Before me, Mr van Bohemen suggested that, although there are some similarities between this Australian decision Jonah v White and the present case, there are more significant differences and the case is distinguishable.   It is contended therefore that Judge Walsh erred in considering it was relevant here.

[66]     With respect I disagree.  In my view the factual similarities between the two cases are clear.  But in any event in acknowledging that Jonah v White was not of critical importance, Judge Walsh accepted that each case is different and must be

considered on the basis of its own particular circumstances, with the Court determining the issue on a case by case basis.

Chand v Chand17

[67]     At  para  [25]  of  his  decision  Judge  Walsh  considers  a  discussion  by Professor Henaghan of Chand v Chand which was decided prior to the legislative change which equated de facto with marriage relationships.  There was therefore no possibility in that case of a contemporaneous marriage and a qualifying de facto relationship to be considered.

[68]     In my view this decision Chand v Chand to an extent is irrelevant to the issues before the Court on these appeals because the Judge there did not have to consider whether there was a qualifying de facto relationship pursuant to s 2D of the PRA.  Chand v Chand was also dissimilar to the present case in that in Chand the parties had purchased real estate together whereas in the present case Mr Hutchison and Ms Greig did not do this and certainly did not consult each other in respect of their individual property purchases.

Chapman v P

[69]     The  facts  of  this  case  involved  questions  over  the  existence  of  both  a marriage and a de facto relationship determined at the time of death of one partner. Again, Mallon J in that case determined that these needed to be assessed against the case’s own particular unique set of circumstances.

[70]     In doing this Mallon J stated:

All of the cases in this area are fact dependent…the closest on the facts of the cases relied on by the parties is C v S because the alleged de facto relationship occurred during an existing marriage of one of them.   In that case the Family Court concluded that the pair were long term lovers and not living together as a couple…In this case I consider that  P N and E P’s relationship “crossed the line” from long term lover and companion to a de facto couple when P N moved into Brougham Street.

17     Chand v Chand [2001] NZFLR 704 (FC).

[71]     As I see his decision, Judge Walsh in fact made an enquiry exactly along the lines suggested by Mallon J in this passage outlined in Chapman v P.  He weighed up all the facts and circumstances concerning the parties over the various years and concluded that up to 2007 Mr Hutchison and Ms Greig may have been long term lovers and confidantes, but they were not living together as a couple such as to constitute them as being in a de facto relationship.

Scragg  v Scott

[72]    Acknowledging from this case that where there are two relationships in existence, commitment does not need to be equal, and what needs to be shown is a degree of “emotional association” to place a relationship into the category of a de facto one, I am satisfied that Judge Walsh did not misapply Scragg v Scott here.

[73]     The notion in Scragg v Scott that the Court must always examine all facets of a   relationship   and   consider   the   cumulative   weight   of   all   the   evidence   as determinative, as I see it, was clearly applied by Judge Walsh in his decision here. Given the nature of personal relationships varies infinitely, I am satisfied that in his judgment Judge Walsh did accept whether or not parties are in a qualifying de facto relationship was always a factual matter to be established by considering all the evidence on the balance of probabilities.  In my view he was entirely correct in this approach.

[74]     For all the reasons outlined above, I reject the suggestion that Judge Walsh misapplied the authorities I have discussed in any critical way, or that he misdirected himself  on  the  law  as  to  contemporaneous  relationships  such  that  he  erred  in reaching the conclusion that he did.

[165]   To the extent that this appeal has not affected the decision of the Family Court, that decision stands.   Should the parties need clarification in implementing this judgment they may seek the Court’s assistance.

Costs

[166]   Before me counsel sought leave to address the issue of costs in this Court (and presumably also with respect to the costs orders made in the Family Court) if agreement could not be reached between them otherwise following receipt of this decision.

[167]   Leave is therefore reserved for any party, in the event of disagreement, to approach the Court on 48 hours’ notice with a request that issues of cost are to be addressed by the Court.   If such a request is made, the Registrar is directed to arrange a telephone conference of all parties for directions to be made as to a process for resolving those issues.

The stay

[168]   At [14] and [16] above I mentioned the stay I had granted on 23 April 2015 for enforcement of certain of the orders made by Judge Walsh in his substantive and costs judgments.   For completeness, I simply note again here that this stay was granted only until such time as the appeal period for the decision I now give on these appeals and cross-appeals expires. The stay remains in place in the meantime.

...................................................

Gendall J

Solicitors:

Stephen van Bohemen, Christchurch
Jason Wren, Christchurch

Wynn Williams & Co, Christchurch

Angela Corry, Christchurch

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Greig v Hutchison [2015] NZHC 3067

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Llamas v Massaar [2018] NZHC 357
Greig v Hutchison [2015] NZHC 3067
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DM v MP [2012] NZHC 503