H v W - [2024] NZHC 3041

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

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-756

[2024] NZHC 3041

UNDER Trusts Act 2019 and Property (Relationships) Act 1976

IN THE MATTER

of an application for the removal and replacement of a trustee

BETWEEN

H as Trustee of the Trust

Plaintiff/Counterclaim Defendant

AND

W as Trustee of the Trust Defendant/Counterclaim Plaintiff

Hearing: On the Papers at Auckland

Judgment:

18 October 2024

JUDGMENT (NO.2) OF POWELL J

[Further directions to implement sale and other orders]

This judgment was delivered by me on 18 October 2024 at 4.00 pm.

Pursuant to R 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar

H as Trustee of the Trust v W as Trustee of the Trust [2024] NZHC 3041 [18 October 2024]

[1] The defendant, seeks further directions to implement a range of orders previously made by this Court in relation to proceedings between the defendant and the plaintiff. Specifically:

(a)orders for sale of the family home in Fairview Heights, Auckland (“the sale order”);1

(b)further orders for the implementation of the sale order as well as an order for costs payable by the plaintiff in the sum of $15,751.50 in relation to her attempt to set aside the sale order (“the implementation and costs order”);2 and

(c)orders in relation to property owned by the Family Trust and relationship property claims between the defendant and the plaintiff (“the relationship property orders”).3

[2] In respect of both the sale order4 and the relationship property orders,5 leave was reserved for the parties to seek further directions from the Court so as to implement the various orders.

Why are further orders sought?

[3] The defendant has advised the Court that since the sale order and the relationship property orders were made, the plaintiff has not cooperated and although the registrar of the High Court has signed transfer documents on the plaintiff’s behalf, she remains in occupation of the family home. As a result, one agreement for sale and purchase in respect of the family home has been cancelled and another is currently at risk in the event that vacant possession cannot be given. Accordingly, the defendant seeks an occupation order so as to ensure the plaintiff vacates the family home and the property can be prepared for sale and subsequently transferred with vacant possession.

1 [H] v [W] [2023] NZHC 2653 at [37].
2 [H] v [W] [2023] NZHC 3499 at [37]; and [H] v [W] HC Auckland CIV-2022-404-756,
12 February 2024 (Minute of van Bohemen J) at [21(c) and (d)].
3 [H] v [W] [2024] NZHC 1383 at [48]–[49] and sch.3.
4 See [H] v [W], above n 1, at [37](c).
5 See [H] v [W], above n 3, at sch 3 cl 15.

[4] In the meantime,…

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 H v W

Details

AGLC: H v W [2024] NZHC 3041
Case: [2024] NZHC 3041
Decision Date: 18 October 2024

CaseChat Overview and Summary

The case involves H, the Trustee of the Trust, and W, also a Trustee of the Trust, who are engaged in a legal dispute regarding the sale of the family home and property division under the Trusts Act 2019 and the Property (Relationships) Act 1976. The defendant, W, has applied for further directions from the High Court of New Zealand to enforce several orders previously made in relation to the family home sale and property division. Specifically, W seeks orders to ensure the plaintiff, H, vacates the family home, to enforce the sale order, to ensure costs are deducted from the proceeds of the sale, and to facilitate the sale of other properties as previously directed.

The court was required to determine whether the additional orders sought by W were appropriate and necessary to implement the earlier judgments. The central issue was whether H's non-cooperation and continued occupation of the family home justified the issuance of an occupation order to vacate the property, and whether the costs incurred in the previous proceedings should be deducted from the sale proceeds. Another consideration was whether the relationship property orders should be amended to allow for the deduction of costs from the proceeds of the sale of other properties.

The court found that the additional orders sought by W were both appropriate and necessary. It was clear that H had no intention of vacating the family home, which had already been determined by previous judgments. The court emphasized the importance of selling the property with vacant possession to avoid further delays and potential loss of value. Additionally, the court noted that the plaintiff had already obtained one of the properties ordered to be sold, mitigating the impact of the occupation order. The court granted the occupation order, requiring H to vacate the family home within 10 working days, and varied the relationship property orders to allow for the deduction of the defendant’s costs from the proceeds of the sale.

The final orders of the court mandated that H vacate the family home within 10 working days, and that the relationship property orders be varied to include the deduction of costs from the sale proceeds.

Orders