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Jef v Gjo

Jef v Gjo

Case [2012] NZHC 1021 15 May 2012

De Facto Relationships

Certainty of Intention

Certainty of Subject Matter

Sham Trust

Bare Trust

Family Law

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NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE COURT/ABOUT/MEDIA/GUIDELINES#FC9.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2011-419-001529 [2012] NZHC 1021

IN THE MATTER OF an appeal pursuant to the District Courts
Act 1947, Section 72

BETWEEN J E F Appellant

AND G J O
First Respondent

ANDG J O AND R M W AS TRUSTEES OF THE S FAMILY TRUST HAMILTON Second Respondents

Hearing: 17 April 2012

Counsel: D Hayes for the Appellant
R D Clark for the Respondent

Judgment: 15 May 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 15 May 2012 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: D Hayes P O Box 9323 Waikato Mail Centre Hamilton 3240 for the Appellant
R D Clark P O Box 931 Waikato Mail Centre Hamilton 3240 for the
Respondents

JEF v GJO and Ors HC HAM CIV-2011-419-001529 [15 May 2012]

[1] This is an appeal against a decision of the Family Court finding that certain property that was the subject of a claim under the Property (Relationships) Act 1976 (the Act) was not relationship property and, therefore, was unavailable to the appellant. The appeal is opposed by the only surviving respondent, W.

Background

[2] The appellant met the first respondent (now deceased) in mid-2004. At that time, the appellant had separated from her former husband with whom she had four children. She was an administrator at the University of Waikato. She was having a home built in Hamilton, which is now owned by the appellant’s family trust. The first respondent was still married and living with his wife on a property on Lee Road (the Lee Road property) with two teenage children. He was a builder.

[3] In mid-2004, the first respondent and his wife made arrangements to separate. They agreed that he would remain in the Lee Road property and together they would buy a property for the wife. A settlement of property was achieved, at least partly through the sale of an investment home. The wife moved out of the Lee Road property and into her new home on 14 July 2004.

[4] On 15 July 2004, the first respondent executed as settlor a deed of trust forming a discretionary family trust (the trust). The trustees were originally the first respondent and his accountant, W. They were joined in the Family Court proceeding and, therefore, in this appeal as second respondents.

[5] The Lee Road property was valued and then, in August 2004, a memorandum of transfer was executed recording the registered owners of the property as being the first respondent and W. At the same time, a deed of loan, deed of acknowledgement of debt and a deed of forgiveness of debt were executed. There was no sale and purchase agreement to pass the property to the trust.

[6] By August 2004, the appellant…

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 Jef v Gjo

Details

AGLC: Jef v Gjo [2012] NZHC 1021
Case: [2012] NZHC 1021
Decision Date: 15 May 2012

CaseChat Overview and Summary

This appeal arises from a decision of the Family Court, which found that the property that was the subject of a claim under the Property (Relationships) Act 1976 was not relationship property and, therefore, was unavailable to the appellant. The appellant argued that the trust under which the property was held was not validly constituted and that certain assets of the trust were relationship property. The appeal was dismissed by Justice Duffy, who found that the property in question was not relationship property and that the trust was validly constituted. The appellant had failed to establish that the decision of the Family Court was wrong. The judge found that the trust was not void for uncertainty or a bare trust, and that the Lee Road property could not have been beneficially "owned" by the first respondent. Even if the power of appointment had value, it existed as separate property, rather than relationship property. Similarly, the appellant could not claim that the loan was relationship property as the relationship commenced after the loan was made to the trust. The judge concluded that the appeal was dismissed and saw no reason to address the question of whether the Family Court has jurisdiction to determine the validity of trusts.

Orders