Herbst v Herbst - [2013] NZHC 3535

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 AUCKLAND REGISTRY

CIV-2013-404-4251 [2013] NZHC 3535

IN THE MATTER of an appeal under s 39(1)(b) of the
Property (Relationships) Act 1976

BETWEEN SAREL COENRAAD PETRIUS HERBST AND PHILLIPUS MARTHINUS HERBST
First Appellants
HERBST FAMILY COMPANY LIMITED Second Appellant
SAREL COENRAAD PETRUS HERBST Third Appellant

AND ANTONINETTE CAROLINE HERBST Respondent

Hearing: 12 November 2013

Counsel: R C Knight for the Appellants
J Hunter for the Respondent

Judgment: 20 December 2013

JUDGMENT OF BROWN J

This judgment was delivered by me on 20 December 2013
At 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Quay Law, Auckland 1143
Counsel: R C Knight, Auckland 1140

HERBST v HERBST [2013] NZHC 3535 [20 December 2013]

Introduction

[1] The appellants appeal from a decision of his Honour Judge I A McHardy1 delivered on 26 August 2013 finding that there had been a disposition of property under s 44 of the Property (Relationships) Act 1976 (“the Act”) and directing that, in light of the finding of a s 44 disposition, the respondent wife (“the wife”) was entitled to receive one half of the proceeds of sale of a property at Auld Street, Torbay with no allowance being made, in calculating the net proceeds of sale, for the amount of a mortgage to the sons of the former husband (‘the husband”).

[2] The grounds detailed in the notice of appeal seeking an order quashing the Family Court’s findings that there was a disposition that fell within s 44 of the Act were extensive. They stated:

1.The Learned District Court Judge erred in law and in fact in his treatment of the ante-nuptial agreement entered into by the parties in South Africa, particularly in his finding that this agreement was not valid in New Zealand in that:

a. The validity or otherwise of the ante-nuptial agreement should have been determined prior to the Learned Family Court Judge’s determination of the s44 claim as it is a factor that impacts upon the husband’s (the third appellant’s) intentions and motives in relation to any dispositions of property that were made in the immediate period after he and the respondent moved to New Zealand;

b. The obiter comments in Bergner v Nelis2 that Parliament intended agreements entered into in another jurisdiction to be given effect, should have been followed;

c. Even if the ante-nuptial agreement was not valid in New Zealand, it is persuasive evidence in relation to the classification of property brought to New Zealand from South Africa;

d. The agreement as found by the Learned Family Court Judge that the third appellant and the respondent agreed that the ante-nuptial agreement would not follow them to New Zealand at [173] of the judgment, is not a finding that the Learned Family…

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 Herbst v Herbst

Details

AGLC: Herbst v Herbst [2013] NZHC 3535
Case: [2013] NZHC 3535
Decision Date: 20 December 2013

CaseChat Overview and Summary

The appeal was brought by the husband and his two sons from his previous marriage against a decision of Judge McHardy of the Family Court that there had been a disposition of property within the meaning of s 44 of the Property (Relationships) Act 1976. The appeal was dismissed. The appeal was brought against a finding that the parties’ prenuptial agreement, executed in South Africa, was not valid in New Zealand. The Court held that the agreement did not satisfy the requirements of s 7A(2) of the Act because it was not entered into before or at the time the parties’ relationship began. The Court also found no error in the Family Court’s determination that there had been a disposition within the meaning of s 44. The Court held that there was ample evidence upon which the Family Court could find that the disposition was intended to defeat the wife’s claim. The Court rejected the husband’s submission that the Family Court had no jurisdiction to make an order in relation to the proceeds of the sale of the property which had replaced the property that had been the subject of the disposition. The Court found that the Family Court had jurisdiction to make the orders which it made in relation to the proceeds of sale of the property. The Court also rejected the husband’s submission that the Family Court had no jurisdiction to declare the mortgage created by the husband’s sons to be a sham. The Court held that the Family Court was entitled to disregard a transaction which it found to be a sham.

Orders