IAT v SJG - [2013] NZHC 2976

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 WELLINGTON REGISTRY

CIV-2013-485-001363 [2013] NZHC 2976

UNDER the Property (Relationships) Act 1976

BETWEEN

I A T Appellant

AND

S J G Respondent

Hearing: 30 October 2013

Counsel:

T G Stapleton QC for Appellant
F M L Gush for Respondent

Judgment:

12 November 2013

JUDGMENT OF COLLINS J

Introduction

[1] Mr T has appealed, and Ms G has cross-appealed, a judgment of Judge Walsh delivered on 21 May 2013.1 That judgment addressed issues arising from the parties’ dispute about their relationship property.

[2] The appeal and cross-appeal raise five key questions:

(1)Whether Judge Walsh erred when he awarded compensation under s 18B of the Property (Relationships) Act 1976 (the Act) to Ms G for

1 SJG v IAT [2013] NZFC 4040.

T v G [2013] NZHC 2976 [12 November 2013]

contributions she made to the care of the parties’ children post- separation and if not, what amount should have been awarded?

The relevant portions of s 18B(2) of the Act provide that if between separation and the hearing of an application under the Act a spouse has done anything that would have been a contribution to the marriage if it had not ended, the Court can order compensation of that spouse by the other spouse.

(2)Whether Judge Walsh erred when he awarded compensation under s 44C of the Act to Ms G in respect of certain shares that had been disposed of to a family trust.

The relevant portions of s 44C of the Act provide that if, since the beginning of the marriage, either spouse has disposed of relationship property to a trust with the effect of defeating a claim or the rights of the other spouse, then the Court can order the payment of a sum of money to the other spouse out of relationship property or separate property.

(3)Whether Judge Walsh erred when he classified a bank account and certain shares as being relationship property.

(4)Whether interest can be awarded under s 33(4) of the Act to compensate Ms G for her inability to use the family home post- separation when that home is held by a family trust.

The relevant portions of s 33(4) of the Act provide that where a spouse is liable to pay the other spouse a sum of money, “the Court may direct that [the sum] shall be paid ... in such manner and subject to such conditions (including a condition requiring the payment of interest) as the Court thinks fit”.

The relevant interest is calculated from the date of separation to the date the principal is paid.

(5)Whether Judge Walsh erred when he awarded Ms G interest at a rate of three per cent instead of five per cent on the amount payable to her under the Family Court judgment?

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 IAT v SJG

Details

AGLC: IAT v SJG [2013] NZHC 2976
Case: [2013] NZHC 2976
Decision Date: 12 November 2013

CaseChat Overview and Summary

This case involved an appeal and cross-appeal between Mr T and Ms G, who were formerly married, regarding their relationship property. The main issues were whether the lower court correctly awarded compensation for contributions made by Ms G to the care of their children post-separation, compensation for shares transferred to a family trust, classification of certain assets as relationship property, and the interest rate on amounts awarded. The court found that the lower court did not err in awarding compensation for Ms G's care of their children and for shares transferred to the family trust. However, the court found that the lower court erred in classifying David Jones shares as relationship property, and that they were in fact the separate property of Mr T. The court also found that the lower court had jurisdiction to award interest under s 33(4) of the Act in relation to the sum of $285,000 paid to Ms G, but remitted this issue to the Family Court for further evidence. Lastly, the court found that the lower court erred in awarding interest at a rate of three per cent instead of five per cent on the amount payable to Ms G under the judgment. The court ordered that the parties bear their own costs.

Orders