Hair v Cook
[2025] NZHC 1677
•24 June 2025
NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, 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-2024-404-2970
[2025] NZHC 1677
UNDER the Family Proceedings Act 1980 BETWEEN
IAN MUIR HAIR
Appellant
AND
ANNA JENNIE COOK
Respondent
CIV-2024-404-3165 UNDER
the Family Proceedings Act 1980
BETWEEN
IAN MUIR HAIR
Appellant
AND
ANNA JENNIE COOK
Respondent
Hearing: 8 May 2025 Appearances:
G M Illingworth KC and RMN Marsich for appellant JWA Johnson and N G Lawrence for respondent
Date of judgment:
24 June 2025
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 24 June 2025 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
HAIR v COOK [2025] NZHC 1677 [24 June 2025]
[1] Ian Hair appeals each the 5 March 2024 decision of Judge S J Maude and the 19 September 2024 decision of Judge S M Morrison in the Family Court at North Shore,1 making consecutive interim maintenance orders under s 82 of the Family Proceedings Act 1980 (the 1980 Act) directing Mr Hair’s payment to Anna Cook of respectively $6,000 and $4,700 per week.
Background
[2] Ms Cook and Mr Hair separated in early August 2022 after a relationship of some 20 years. Their property primarily was held in the Hair Family Trust and the Muirian Trust, both settled by Mr Hair, from which disbursements had supported their relationship and of which Mr Hair and another are trustees of each. Ms Cook and Mr Hair are among the trusts’ discretionary beneficiaries.
[3] In addition to her claim for division of their property under the Property (Relationships) Act 1976 (the 1976 Act), in terms of s 64 of the 1980 Act, Ms Cook contends Mr Hair is liable to maintain her as necessary to meet her reasonable needs she cannot practically meet because of particular relevant circumstances: principally, her ability to become self-supporting in transition from the standard of living while they lived together. Section 64A requires each party to “assume responsibility, within a period of time that is reasonable in all the circumstances of the particular case, for meeting his or her own needs”, on expiry of which time “neither … is liable to maintain the other under s 64”, subject to the reasonableness of such maintenance having regard to their ages, the duration of their relationship and their ability to become self-supporting.
[4] On Ms Cook filing an application for a maintenance order, s 82 of the 1980 Act enabled a District Court Judge to make an order directing Mr Hair “to pay such periodical sum as the District Court Judge thinks reasonable towards [Ms Cook’s] future maintenance … until the final determination of the proceedings or until the order sooner ceases to be in force”. Section 82(4) provides such order only continues in force for six months “after the date on which it is made”. Regard must be given in
1 Cook v Hair [2024] NZFC 2174 [the second order] and Cook v Hair [2024] NZFC 9357 [the third order].
any proceedings under the 1976 Act for any order made under the 1980 Act for maintenance.2
[5] On 4 August 2023, on the basis Mr Hair could “lay his hands on” sufficient funds to meet Ms Cook’s reasonable needs,3 Judge Maude ordered Mr Hair pay Ms Cook $6,580 per week, inclusive of then-current child support and rental payments.4
[6] Mr Hair appealed Judge Maude’s decision. On appeal, Anderson J found, when the Judge’s order was extant but incompletely met, “Mr Hair procured the payment of his own legal and accounting fees from a sell down of trust … assets”.5 While Mr Hair had “access[ed] capital under his control to make funds available, at least to himself”, by reason of the trusts’ financial circumstances, he could neither “access further borrowings of the trusts” nor “have income from the trust to pay maintenance”. Rather, the trusts “would appear to need to sell capital assets to achieve this”. Such was contrary to Judge Maude’s assumption Mr Hair continued to have access to capital under his control to make funds available.6
[7]Anderson J continued:7
Based on the above, this is a case where there is insufficient income to meet the parties’ reasonable needs. The issue is then whether the parties ought to resort to capital from assets under their control. That is a question to be answered having regard to the overall factual context.
…
Mr Hair has in fact used the [trusts’ assets] to fund himself. In these circumstances it is appropriate that funds released from the sale be applied for Ms Cook’s maintenance rather than requiring her to borrow against the house she is living in as Mr Hair contended she should. Whether this means there will be funds available from the trusts for future periods is not something I need to address.
Having regard for available funds, the trustees’ inability to borrow against the trusts’ assets and other interests involved in the trusts, her Honour reduced Mr Hair’s
2 Property Relationships Act 1976, s 32(1).
3 The second order, above n 1, at [5(c)].
4 Cook v Hair [2023] NZFC 8246 [the first order] at [47].
5 Hair v Cook [2024] NZHC 347 at [41].
6 At [46].
7 At [47]–[50] (footnotes omitted).
payments to Ms Cook for the six months to 4 February 2024 to $6,000 per week.8 She summarised her reasoning as being “Mr Hair relevantly has access to or ‘can lay his hands on’ trust capital in the period to which the order relates”.9
[8] Mr Hair now has paid the entirety of the sum then ordered to Ms Cook.10 He also has leave to appeal Anderson J’s decision to the Court of Appeal, as the proposed appeal:11
… raises issues relating to the circumstances in which trust resources can be considered for the purposes of interim spousal maintenance proceedings[,] … a matter of general importance on which there is an absence of Court of Appeal authority.
That second appeal remains for hearing.
Judgments under appeal
[9] The decisions now under appeal are Judge Maude’s second and Judge Morrison’s third interim maintenance orders, each necessarily not to continue in force for more than six months after the date on which it was made.
[10] On 5 March 2024, Judge Maude assessed Mr Hair continued to be able to “lay his hands on” sufficient funds to meet Ms Cook’s reasonable needs,12 because the trustees previously had settled sale of two of the trusts’ properties “to meet Mr Hair’s legal fees and to reduce bank debt” and the same could “occur again without compromising” the trusts’ assets.13 Other trust assets—a helicopter and prospectively tenantable property—afforded opportunity for further funds, and “minimise the extent to which capital would need to be called on to meet Ms Cook’s budgetary need”.14 The Judge considered “nothing of relevance has changed since my August 2023 decision, and certainly not since Anderson J’s decision”,15 and ordered Mr Hair pay Ms Cook $6,000 per week.16
8 At [80].
9 At [83].
10 The third order, above n 1, at [46].
11 Hair v Cook [2024] NZCA 584 at [4].
12 The second order, above n 1, at [32].
13 At [35] and [37].
14 At [38]–[39].
15 At [40].
16 At [42].
[11] On 19 September 2024, Judge Morrison ordered—on the bases “Mr Hair can lay his hands on the funds required to meet Ms Cook’s needs for the next six months by recourse to the sale of assets by [the trusts]”,17 a further six months had elapsed since Judge Maude’s order during which the expense of meeting Ms Cook’s reasonable needs had decreased18—Mr Hair pay Ms Cook $4,700 per week “for six months from 4 August 2024”.19
[12] For Mr Hair, Grant Illingworth KC principally argues both Judges were wrong to:
(a)understand Anderson J’s judgment as entitling them effectively to direct Mr Hair as trustee to use the trusts’ property to put him in funds to maintain Ms Cook’s reasonable needs;
(b)comprehend Mr Hair as being in control of the trusts to the extent he was able to direct use of their property to obtain funds to pay the sums ordered; and
(c)seek to influence exercise of the trustees’ discretion if to obtain and/or release funds by which Mr Hair may meet his interim maintenance obligations.
Mr Illingworth also raises the Judges’ respective “miscellaneous” errors in quantifying the helicopter’s $65,000 value as “almost 11 months” of Ms Cook’s reasonable needs, rather than almost 11 weeks calculated at $6,000 per week;20 Judge Morrison “backdating” the third order to 4 August 2024;21 and both Judges making provision for Ms Cook’s legal costs obligations.22 Finally, there is dispute if Mr Hair has access to a $3.25 million “settlor loan”, on which leave is sought to adduce further evidence before the Court of Appeal.
17 The third order, above n 1, at [43].
18 At [44].
19 At [45].
20 The second order, above n 1, at [38]; the third order, above n 1, at [42].
21 The third order, above n 1, at [45].
22 The second order, above n 1, at [23]; the third order, above n 1, at [34] and [37]–[38].
Approach on appeal
[13] Any party to proceedings under the 1980 Act in which the Family or District Courts relevantly “make an order” may appeal to this Court against the decision.23 By ‘make an order’, s 174(1AA) may mean a substantive rather than interlocutory order under that Act. Interim maintenance orders fall within the latter.
[14] Otherwise, given the absence of any express provision there is no right of appeal against interlocutory orders (but in any event),24 s 124 of the District Court Act 2016 applies—affording a general appeal, conducted by way of rehearing25—under which Mr Hair bears the onus of satisfying me I should differ from the Judges’ decisions. I only am justified in interfering with either decision if I consider it is wrong; in other words, the Judge erred.26
[15] Substantively, I should come to my own assessment of the merits of the case afresh, without deference to the Judges (save for some caution in differing on witness credibility, if I have not had their Honours’ advantage of observing any witnesses),27 including on matters of fact and degree entailing a value judgment.28 If I differ from either Judge, s/he will be “wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ”.29 I may rely on the Judges’ reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.30
[16] To the extent the decisions involved exercise of the Judges’ discretion, I only may interfere with them if Mr Hair establishes their Honours erred in law or principle, did not address relevant matters or took into account irrelevant matters or was “plainly
23 Family Proceedings Act, s 174(1).
24 Section 174(1B).
25 District Court Act 2016, s 127.
26 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
27 At [13].
28 At [16].
29 At [16], referring to Wright v Powell [1982] 1 NZLR 473 (CA).
30 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
wrong”.31 “Plainly wrong” is not synonymous with “wrong” but adds the requirement of being “outside the available ambit of judicial discretion”.32
[17] After hearing the appeal, I may make any decision I think should have been made, or remit the matter to the District Court for rehearing or to consider or determine any particular matter, and otherwise to make further orders including as to costs.33
Discussion
[18] Mr Illingworth’s categorisation of the Judges’ principal contended errors largely is inferential and attributes much unstated content to the Judges’ expressed reasons. I will not be drawn into such hypothetical discussion on appeal.
[19] There is little superior appellate guidance on the approach to decisions under s 82 of the 1980 Act. Under its predecessor, s 77 of the Domestic Proceeding Act 1968:34
The purpose of the provision is obvious enough. It is to protect the position of an applicant who may have inadequate means to meet current needs pending determination of the proceedings, if and so far as it is reasonable in all the circumstances to do so. But the statute does not expressly lay down conditions or criteria as to the granting of an interim order. … [The court] is given an unfettered discretion both as to whether an order should be made at all and as to the amount if an order is made. All that can be said is that the making of an order depends on all the circumstances of the particular case. The Court must do what it thinks just.
In considering the position of an applicant for an interim order a Court will necessarily pay particular regard to the reasonable needs of the applicant over the period for which an order will subsist and the means likely to be available to the applicant to meet those needs. In assessing those needs the Court will take into account the standard of living the parties had adopted for themselves. And we use the term “means” in the broadest sense to encompass any sums which the applicant could reasonably be expected to earn from his or her own efforts during the term of any interim order together with any other funds available to the applicant during that period. What is important, if those means are to be set against the applicant’s needs in determining whether to make an interim order, is that the moneys taken into account should be reasonably assured to the applicant. What could he (or she) reasonably count on having
31 At [32]; and M v R (SC 13/2023) [2024] NZSC 29, [2024] 1 NZLR 83 at [46], citing May v May
(1982) 1 NZFLR 165 (CA) at 170.
32 Hines v R [2024] NZCA 384 at [17], citing National Heart Foundation of New Zealand v Carroll
(2009) 28 FRNZ 268 (HC) at [5], referring to G v G [1985] 1 WLR 647 (HL) at 652.
33 District Court Act, s 128.
34 Ropiha v Ropiha [1979] 2 NZLR 245 (CA) at 247. The approach generally is endorsed in R v R
[2011] NZCA 652, [2012] 1 NZLR 796 (CA).
available during the limited term of an interim order? By the same token, a defendant should not be called on to pay maintenance before there is any finding on the substantive proceedings unless proper weight has been given to the applicant’s capacity from all sources to meet her needs over that period.
…
“Unfettered” means the Judge has unconstrained scope for decision, but its incorrect exercise is not immune from interference on appeal.35
[20] Within that scope, subject to ‘the circumstances of the particular case’, I do not consider it an error if the making of an interim order—against one party to proceedings under the 1980 Act, for the other’s maintenance—can only be met from trust assets. That also was how Anderson J saw matters.36 The order’s making implicitly is on the basis such provision through the liable party is ‘reasonable in all the circumstances’. It may be reasonable in all the circumstances such maintenance is met from trust assets.
[21] The Judges’ interim orders here thus may well have been reasonable in all the circumstances. But Judge Maude’s consideration “nothing of relevance has changed since my August 2023 decision, and certainly not since Anderson J’s decision”,37 is to disregard Anderson J’s decision only was if funds were available to Mr Hair from the trusts during the period of the first order.
[22] Her Honour found funds were available to Mr Hair from the trusts during that first period38—because, as a matter of fact,39 Mr Hair was in receipt of funds from the trusts during that period40—but she needed not to address “[w]hether this means there will be funds available from the [trusts] for future periods”.41
[23] Accordingly, it was incumbent on Judge Maude to identify if funds continued to be available to Mr Hair, whether or not from the trusts, during the subsequent period.
35 B v B [Maintenance] [2008] NZFLR 789 (HC) at [8], referring to T v H [2006] NZFLR 561 (HC) at 565.
36 Hair v Cook, above n 5, at [37], referring to Hodson v Hodson [Maintenance] [2012] NZFLR 252 (HC) and Able v Able [2020] NZFLR 8 (HC).
37 The second order, above n 1, at [40].
38 Hair v Cook, above n 5, at [46(c)].
39 At [50].
40 At [42]–[45].
41 At [50].
His Honour could not simply assume the factual position found by Anderson J would continue, even although it “provide[d] ex post facto support for [his previous] hypothesis”.42 As her Honour noted, it nonetheless was a factual scenario “contrary to what the Judge assumed”,43 and “contrary to the Judge’s assessment”44, as “the primary reasoning of the Judge was founded on the ability of the [trusts] to borrow further, not about its present income”.45
[24] So, contrary also to the Judge’s consideration on the second order, something of relevance had changed: the trusts lacked income or borrowing capacity to put Mr Hair in funds. As a matter of fact, the trusts had put him in funds by the sale of assets, but Judge Maude did not turn his mind to if that prospectively may have been reasonable in all the circumstances of the second order. Anderson J did not need to consider if the trust putting Mr Hair in funds by sale of assets was reasonable in all the circumstances of the first order, because the fact alone was sufficient to maintain the first order (if in reduced sum).
[25] As a result, Judge Morrison’s reliance on the starting point established by Judge Maude’s decision also is unsound. I will set aside both decisions.
[26] Given neither Judge turned his or her mind to the particular issue if the trust(s) putting Mr Hair in funds by sale of assets was reasonable in all the circumstances of respectively the second and third orders, I do not consider it appropriate to substitute my decision for that of the Judges. There may be additional evidence for those decisions in terms of the “settlor loan”. Interim maintenance orders inherently are caught up with determination of substantive maintenance proceedings, which puts the Family Court in a position of particular expertise in addressing the issue of payment of what sum is “reasonable towards the future maintenance of the respondent’s spouse”.46 By remitting the decisions for rehearing, rights of appeal also are preserved (rather than requiring leave to appeal from this Court’s decision). For those reasons,47 I will so remit the decisions.
42 At [42].
43 At [46(b)].
44 At [67].
45 At [69].
46 Family Proceeding Act, s 82(1).
47 District Court Act, s 128(2).
[27] Accordingly, the “miscellaneous” errors relied on by Mr Illingworth do not require my determination, but I observe:
(a)both decisions also were mathematically unsound in characterising the value of a $65,000 helicopter as equating to “almost 11 months” of Ms Cook’s reasonable needs. If that was to identify an asset on which Mr Hair could rely to meet a six-month interim liability of $156,000 calculated at $6,000 per week, plainly it was arithmetically wrong;
(b)section 82 does not expressly prohibit ‘backdating’.48 Rather, s 82(4) only provides “[n]o order made under this section shall continue in force for more than 6 months after the date on which it is made”. If continuity in interim maintenance is reasonable in the particular circumstances, it may be effectively continuous interim maintenance orders can be made even after expiry of enforceability of an earlier order. Section 82(1)’s reference to “future maintenance” is a reference to the substantive application for a maintenance order (or for its “variation, extension, suspension, or discharge”), as to which an interim maintenance order is for payment of “such periodical sum as the District Court Judge thinks reasonable towards” (my emphasis) that substance. The reference is not an express directive against backdating of interim maintenance but appears intended only to ensure any interim order is taken into account in the making of the final maintenance order; and
(c)there is a distinction to be drawn between inclusion of an applicant’s projected legal expenses for the purposes of any maintenance order, and inclusion within them of any costs awarded in proceedings. The latter generally is impermissible.49 But neither decision expressly took any costs award into account; rather, each appears to have been referring to
48 Mr Illingworth includes in the ‘backdating’ objection the first month of the third order already was covered by the last month of the second order. The submission infers the second order commenced on the date it was made for the maximum six-month duration. But the second order appears made with reference to “the ensuing six-month period” (the second order, above n 1, at [12]), meaning from 4 February 2024 (at [6(d)]), thus expiring no later than 3 August 2024.
49 C v G [2010] NZCA 128, [2010] NZFLR 497 at [52].
the reasonableness of Ms Cook’s projected legal expenses during the period of the respective order. So far as I can tell, those expenses did not include any entitlement to or liability for contribution to legal expenses in an award of costs, the third order expressly referring only to “Estimated legal fees (including criminal counsel, relationship property counsel, solicitor, and mediator fees)”. Any allowance for legal expenses in a maintenance order can be taken into account on any subsequent award of costs; the prospect of such an award does not exclude legal expenses from consideration in determining the maintenance order’s quantum.
Result
[28]The appeals are upheld and the second and third orders set aside.
[29] I direct the District Court rehear Ms Cook’s second and third interim maintenance applications.
Costs
[30] Costs are reserved for determination on short memoranda each of no more than five pages—annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate—to be filed and served by Mr Hair within 10 working days of the date of this judgment, with any response and reply to be filed within five working day intervals after service.
—Jagose J
Counsel/Solicitors:
G M Illingworth KC, AucklandRMN Marsich, Barrister, Auckland JWA Johnson, Barrister, Auckland N G Lawrence, Barrister, Auckland Dyer Whitchurch, Auckland
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