Herbison v Waugh - [2018] NZHC 3101

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001094

[2018] NZHC 3101

BETWEEN
CRAIG DON HERBISON

Appellant

AND

ANITA MARIE WAUGH

Respondent

Hearing: 18 October 2018

Appearances:

B P C Carter for the Appellant M Headifen for the Respondent

Judgment:

29 November 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 29 November 2018 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel:
Brian Carter, Barrister, Auckland
Michael Headifen, Barrister, Auckland

HERBISON v WAUGH [2018] NZHC 3101 [29 November 2018]

[1] Mr Herbison and Ms Waugh were in a de facto relationship for four-and-a-half years from January 2007 to June 2011, when they separated. Mr Herbison had two daughters from a prior marriage. Ms Waugh and Mr Herbison had two sons during their brief relationship.

[2] Proceedings were commenced on 25 June 2012 and heard by Family Court Judge D M Partridge some six years later.

[3] Her Honour determined a large number of outstanding relationship property issues, in a lengthy and thorough judgment dated 8 May 2018, delivered two weeks after the conclusion of the hearing.1

[4]Only four aspects of that judgment are appealed.

Grounds of appeal

[5]The four issues are as follows:

(a)Whether a Maserati car was converted to relationship property by its use, under s 2 of the Property (Relationships) Act 1976. (The Family Court Judge found it had been.)

(b)Whether a diamond engagement ring had been re-gifted by Ms Waugh to Mr Herbison under s 10(3) of the Act. (The Family Court Judge found it had not, and that it remained the separate property of Ms Waugh.)

(c)Whether legal fees incurred during the relationship, relating to a prior relationship breakup, are personal debts and if so, what compensation is payable. (The Family Court Judge found they were personal debts in terms of s 20 of the Act and awarded compensation of 50 per cent of the total debt under s 20E of the Act.)

1 Waugh v Herbison [2018] NZFC 3365.

(d)What compensation should be paid for the post-separation imbalance in the relationship property pool, under s 18B of the Act. (The Family Court Judge awarded interest at five-and-a-half per cent per annum on the full differential from date of separation, a period of approximately seven-and-a-half years.)

Maserati – s 2

[6] The Maserati was separate property. It was purchased by Mr Herbison just before the relationship started.

[7] The question is whether it became relationship property by virtue of s 2 of the Act, which defines family chattels as including motor vehicles “used wholly or principally, in each case, for family purposes”. Family chattels are then subject to equal sharing under s 11(1)(b).

[8] Section 2H(2)(b) of the Act provides that “use” refers to the use to which the asset was being put before the relationship ended.

[9] It seems clear that the Maserati did not incur much mileage. It clocked up about 3,000 kilometres…

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 Herbison v Waugh

Details

AGLC: Herbison v Waugh [2018] NZHC 3101
Case: [2018] NZHC 3101
Decision Date: 29 November 2018

CaseChat Overview and Summary

In Herbison v Waugh, the High Court reviewed the Family Court's judgment that resolved numerous property issues arising from the de facto relationship of Craig Herbison and Anita Waugh. The appeal was limited to four issues: the classification of a Maserati as relationship property, the status of a diamond engagement ring, the characterization of legal fees incurred during the relationship, and the compensation for post-separation imbalance in the relationship property pool. The High Court found that the Maserati became relationship property by virtue of its use for family purposes. The court upheld the Family Court's decision that the diamond ring remained the separate property of Ms Waugh, as Mr Herbison failed to prove that Ms Waugh intended to gift the ring back to him. Regarding the legal fees, the High Court determined that they were relationship debts, thereby negating the need for compensation under section 20E of the Property (Relationships) Act 1976. Lastly, the High Court reduced the interest rate for the post-separation imbalance compensation to four-and-a-half per cent per annum, running from the date the proceedings were issued, resulting in a lower interest payable by Mr Herbison to Ms Waugh.

Orders