J v J - [2019] NZHC 1674

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001429

[2019] NZHC 1674

UNDER the Property (Relationships) Act 1976

BETWEEN

MRS J
Applicant

AND

MR J

Respondent

Hearing: 17 July 2019

Counsel:

TH Brown and HZL Krebs for Applicant

Judgment:

17 July 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 17 July 2019 at 4.45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
K3 Legal, Auckland.

MRS J v MR J [2019] NZHC 1674 [17 July 2019]

[1] Judge T H Druce transferred this case to the High Court today due to its complexity. Whether it remains here is for another day.

[2] Mr and Mrs J are husband and wife—but separated. Mrs J seeks without notice relief under s 43 of the Property (Relationships) Act 1976. More particularly, Mrs J seeks orders restraining relationship property: gold bars worth millions of dollars and funds in bank accounts. Some of the property is here; some overseas.

[3]I heard from Mrs J’s lawyers (in person) this afternoon.

[4] Section 7 of the Property (Relationships) Act applies to movable property in New Zealand and elsewhere, provided one of the spouses or partners lives in New Zealand (when the application is made). Mrs J lives in Auckland.

[5]Section 43 of the Act provides:

Dispositions may be restrained

(1) Where it appears to the High Court or the District Court or the Family Court that any disposition of property is about to be made, whether for value or not, by or on behalf of or by direction of or in the interests of any person in order to defeat the claim or rights of any other person (party
B) under this Act, the Court may, … on such notice being given as the Court may direct, by order restrain the making of the disposition or may order any proceeds of the disposition to be paid into Court to be dealt with as the Court directs.

[6] Mrs J has sworn two affidavits; one dated 2 July 2019, a second dated 11 July 2019. Recitation of detail is undesirable given the without notice nature of the application, and infancy of the case. The affidavits satisfy me the statutory criteria are met as a matter of inference. This because Mrs J’s evidence can establish:

(a)All of Mr J’s property is relationship property.

(b)Mr J has, for many years, placed relationship property into trusts or his own name.

(c)Mr J has been less than candid with Mrs J about relationship property, and other matters central to their relationship, including contact with their children.

(d)Mr J unilaterally changed the locks to a home or apartment, it being relationship property.

(e)Mr J has a false Belize passport.

(f)Mr J (and Mrs J) have lived in many different places.

(g)Mr J is seemingly anxious to maintain limited contact details, and lives in a gated compound in the United States of America.

(h)Gold…

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 J v J

Details

AGLC: J v J [2019] NZHC 1674
Case: [2019] NZHC 1674
Decision Date: 17 July 2019

CaseChat Overview and Summary

In the case of Mrs J v Mr J, the court was called upon to make without notice orders under section 43 of the Property (Relationships) Act 1976 to restrain the disposition of property by Mr J. The application was brought by Mrs J, who sought relief to prevent Mr J from dealing with relationship property, including gold bars worth millions of dollars and funds in bank accounts. Mrs J sought restraining orders to protect this property from being disposed of in a way that could defeat her rights under the Act.

The legal issues before the court were whether the statutory criteria for making restraining orders under section 43 were met and whether such orders should be made without notice to Mr J. The court had to consider the evidence presented by Mrs J through her affidavits and decide whether the property in question qualified as relationship property and whether there was a risk that it would be disposed of in a manner that would defeat Mrs J's rights.

The court found that the statutory criteria for making restraining orders were met based on the evidence presented. The orders were made without notice to Mr J as the court was satisfied that the criteria were met and that Mr J would not be prejudiced. The court also declined to make discovery orders as the jurisdiction was in doubt and they were not necessary to preserve Mrs J's position on a without notice basis. The court made an order for substituted service due to Mr J's residence in the United States.

The final orders made by the court included restraining orders in relation to the gold bars and the funds in bank accounts. The court also made an order for substituted service to ensure Mr J was promptly informed of the orders and served with the judgment.

Orders