Holmes v Crombie - [2020] NZHC 2262

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2020-425-16

[2020] NZHC 2262

IN THE MATTER of an appeal against a decision of the Family Court at Invercargill

BETWEEN

JACQUELINE LESLEY HOLMES

Appellant

AND

GREGORY SHAUN CROMBIE

Respondent

Hearing: 25 August 2020

Counsel:

RGR Eagles for Appellant J B Walker for Respondent

Judgment:

1 September 2020

JUDGMENT OF OSBORNE J

(on appeal)

This judgment was delivered by me on 1 September 2020 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HOLMES v CROMBIE [2020] NZHC 2262 [1 September 2020]

[1] Jacqueline Holmes and Gregory Crombie had a relationship from 2001 to 2015, to which the Property (Relationships) Act 1976 (the Act) applies.

[2] In 2017, Ms Holmes applied to the Family Court for orders in respect to property under the Act.

[3] By a judgment earlier this year, Judge J J Brandts-Giesen made orders identifying relationship and separate property and as to division of property (the Judgment).

[4]Ms Holmes appeals six aspects of the Judgment.

The appeal regime

[5] Appeals such as this are by way of rehearing.1 The correct approach for the appellate Court is that identified by Elias CJ in Austin, Nichols & Co Inc v Stichting Lodestar, where her Honour stated:2
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.3

[6] Where the appealed finding involved the exercise of a discretion, the appellate Court’s role is more constrained. As recognised by the Supreme Court in K v B, in order to succeed against an exercise of discretion, an appellant must show that:4

(a)error of law or principle;

(b)taking account of irrelevant consideration;

(c)failing to take account of a relevant consideration; or

1      High Court Rules, r 20.18.
2      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
3      As illustrated by Wright v Powell [1982] 1 NZLR 473 (CA).
4      K v B [2010] NZSC 112, [2011] 2 NZLR 1, [2010] NZFLR 884 at [32].

(d)a plainly wrong decision.

The Judgment generally

[7] The Judgment concerned relationship and separate property issues arising from a 14 year relationship between the parties, during which time they had five children.

[8] The parties met and commenced their relationship in Poverty Bay before moving sequentially to the Wairarapa and Southland. Various properties were purchased in the names of the parties either separately or together.

[9] The Judge did not find it necessary to and did not resolve a disputed factual issue as to whether the relationship…

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 Holmes v Crombie

Details

AGLC: Holmes v Crombie [2020] NZHC 2262
Case: [2020] NZHC 2262
Decision Date: 1 September 2020

CaseChat Overview and Summary

Jacqueline Holmes appeals a Family Court decision regarding the division of property between the parties under the Property (Relationships) Act 1976 (the Act). The appeal concerns the division of the proceeds from the sale of a property at Montgomery Place, Masterton, and the treatment of various other assets and contributions during the relationship. The court must decide whether the Family Court judge erred in determining the division of the assets and contributions between the parties under the Act.

The court first examines the Montgomery Place ruling, where the Family Court judge found that the property was relationship property but allowed Ms Holmes to retain it and repay $90,811.64 to Mr Crombie for her separate contribution. Ms Holmes argues that she should receive a proportionate share of the value of the property, rather than just her separate contribution, and cites Watson v Watson as precedent. However, the court finds that the nature of the acquisition of Montgomery Place makes it difficult to apportion the property between relationship and separate property. Additionally, the court notes that the parties had intermingled their finances, making it unreasonable to treat Ms Holmes' contribution as separate property.

The court also considers Ms Holmes' claim for an additional $10,000 contribution and finds that the Family Court judge was correct in not addressing this amount, as the evidence was inconclusive. The court further examines the withdrawal of $7,809.44 from the joint account and the purchase of Bonus Bonds with funds from a shared account. The court upholds the Family Court's decisions on these issues, finding that the judge's conclusions were supported by the evidence.

Lastly, the court addresses the division of chattels and services provided to Fyfe, a company in which Mr Crombie held shares. The court finds that the Family Court judge's conclusions on these matters were supported by the evidence and that the judge was entitled to refuse relief under s 17 of the Act.

In conclusion, the court finds that the Family Court judge did not err in fact or law in relation to any of the findings challenged on this appeal. The appeal is dismissed, and costs are awarded to the respondent on a 2B basis.

Orders