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Horsfall v Potter

Horsfall v Potter

Case [2017] NZSC 196 21 December 2017

Contract Formation

Unconscionable Conduct

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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 COURT ACT 1980. FOR FURTHER
INFORMATION, PLEASE SEE

IN THE SUPREME COURT OF NEW ZEALAND

SC 138/2016
[2017] NZSC 196

BETWEEN

MARK ALBERT HORSFALL
Appellant

AND

DIANA JANE POTTER
First Respondent

168 GROUP LIMITED
Second Respondent

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 J R Billington QC and T F Cleary for First Respondent R J B Fowler QC for Second Respondent M Deligiannis for Attorney-General as Intervener
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…

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 Horsfall v Potter

Details

AGLC: Horsfall v Potter [2017] NZSC 196
Case: [2017] NZSC 196
Decision Date: 21 December 2017

CaseChat Overview and Summary

The appeal of Mark Horsfall against the decision of the Court of Appeal to reinstate the orders of the Family Court in relation to the division of property between him and his former wife, Diana Potter, was dismissed by the Supreme Court. The Supreme Court held that Ms Potter was not a beneficial owner of the College Street property at the time of its sale. On the evidence, it was not established that Ms Potter was a beneficial owner of the property when it was sold, and therefore the orders of the Court of Appeal to reinstate the orders of the Family Court were not justified. The Supreme Court allowed the appeal and held that the appeal was dismissed. The appellant was ordered to pay the first respondent costs of $25,000 together with reasonable disbursements.

Orders