| NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) |
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 138/2016 [2017] NZSC 196 |
| BETWEEN | MARK ALBERT HORSFALL |
| AND | DIANA JANE POTTER 168 GROUP LIMITED |
| Hearing: | 15 June 2017 |
Court: | Elias CJ, William Young, Glazebrook, OʼRegan and McGrath JJ |
Counsel: | T G Stapleton QC and J H Coleman for Appellant |
Judgment: | 21 December 2017 |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant is to pay the first respondent costs of $25,000 together with reasonable disbursements. We allow for second counsel.
____________________________________________________________________
REASONS
| Para No | |
| William Young, Glazebrook, O’Regan and McGrath JJ | [1] |
| Elias CJ | [101] |
WILLIAM YOUNG, GLAZEBROOK, O’REGAN AND MCGRATH JJ
(Given by William Young J)
Table of Contents
| Para No | |
| The appeal | [1] |
| The facts | [7] |
| General background | [7] |
| The acquisition of the College Street property | [12] |
| Modification proposals | [28] |
| The sale of the College Street property and the application of the proceeds of sale | [30] |
| The conflicting narratives | [35] |
| Accounting flexibility | [42] |
| Potter v Potter | [44] |
| Overview | [44] |
| Potter v Potter | [47] |
| The cases referred to in Potter v Potter | [50] |
| Tinsley, Nelson and Patel | [53] |
| The Illegal Contracts Act and the continuing applicability in New Zealand of Potter v Potter | [55] |
| The decisions of the Courts below | [61] |
| The Family Court judgment | [61] |
| The High Court judgment | [64] |
| The Court of Appeal judgment | [70] |
| Was the College Street property relationship property? | [75] |
| Were the payments made in order to defeat Ms Potter’s rights? | [95] |
| Disposition | [100] |
The appeal
The appellant, Mark Horsfall, and the first respondent, Diana Potter, met in 1997. In September or October 1998, they started living together and they married in October 2002. There is one child of the marriage. They separated in April 2008. They were unable to agree upon a division of their property under the Property (Relationships) Act 1976 (the Act) and this resulted in litigation in the Family Court.
One of the issues which the Family Court Judge was required to address related to a property in College Street, Wellington.[1] This property had been acquired in 2003 in the joint names of Mr Horsfall and Ms Potter. It was sold in 2004 and Mr Horsfall transferred virtually all of the proceeds of sale to the second respondent, 168 Group Ltd. Ms Potter claimed that this was in order to defeat her rights under the Act and that she was accordingly entitled to relief under s 44.
[1]We will refer to this property as “the College Street property”; however, as will become apparent, initially this property was one of three neighbouring properties purchased. We will refer to the three properties as “the College Street properties”.
Her…
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- AGLC
- Horsfall v Potter [2017] NZSC 196
- Case
- [2017] NZSC 196
- Decision Date
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Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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