H v C - [2015] NZHC 1006

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 NELSON REGISTRY

CIV-2014-442-000078 [2015] NZHC 1006

UNDER
Section 21 of the Property (Relationships)

Act 1976

BETWEEN

H Appellant

AND

C Respondent

Hearing: 11 May 2015

Counsel:

R T Somerville for Appellant
G P Barkle for Respondent

Judgment:

13 May 2015

JUDGMENT OF COLLINS J

Introduction

[1] I am dismissing Ms H’s appeal from a judgment of Judge R J Russell

delivered in the Family Court at Nelson on 23 October 2014.

[2] In his judgment Judge Russell set aside a relationship property agreement signed by Ms H and Mr C on 23 February 2012 (the agreement) following the termination of their relationship. Judge Russell also made a series of consequential
orders concerning the division of the parties’ relationship property.

H v C [2015] NZHC 1006 [13 May 2015]

[3] I am dismissing Ms H’s appeal because Judge Russell’s decision was right in every material respect. Judge Russell correctly assessed the evidence and applied the law appropriately to the facts of this case. Having carefully reviewed the evidence and considered the relevant law, I agree with the conclusion that Judge Russell reached and his reasons for doing so.

Background

[4] Ms H and Mr C met during the course of 1992 to 1993 and starting living together in 1994. I understand they both had their own properties at the time they met. Those properties were sold during the course of the parties’ relationship. Their son was born in October 1994.

[5] On 19 September 1996, Mr C formed a company called TRC Ltd (the company). Mr C was the sole director and shareholder of the company which acquired all of the assets and liabilities of a fish and chip shop business owned by Mr C in Richmond.

[6] On 10 July 1998, the parties purchased their first house together. This was a property in Brightwater. In May 2003 the parties sold their Brightwater home and purchased a property at Queen Street, Richmond.

[7] The next property which the parties purchased was at Hill Street, Richmond. This property was purchased on 18 April 2005 and was financed by way of a mortgage to the ANZ Bank for $435,000. The property at Queen Street was not sold until 1 June 2007. The parties received $174,566 net from the sale of the Queen Street property.

[8] Both counsel advised me the parties purchased other properties during the course of their relationship. No details were provided as to when those properties were purchased and sold.

[9] On 22 May 2006, the company purchased a coffee shop in the Richmond Mall (the Richmond coffee shop). The company paid $400,000 for the plant, goodwill and stock associated with the Richmond coffee shop. This purchase was

financed by the company borrowing $400,000 from the National Bank,…

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: [2015] NZHC 1006
Decision Date: 13 May 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the court was called upon to decide the appeal of Ms H against a Family Court judgment which set aside a relationship property agreement she had entered into with Mr C. The Family Court had found that giving effect to the agreement would cause Mr C serious injustice. The court considered whether the Family Court had erred in setting aside the agreement, focusing on four factors outlined in section 21J(4) of the Property (Relationships) Act 1976. The court found that the Family Court had correctly exercised its discretion to set aside the agreement as it would cause Mr C serious injustice. The court also found that the Family Court had appropriately balanced the injustice to both parties and had not erred in its assessment of the injustice to Ms H if the agreement were set aside. The appeal was dismissed, and the orders made by the Family Court concerning the division and sale of the parties' property remained in force.

Orders