K v K

[2023] NZHC 1153

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2022-443-47 CIV-2022-443-48

[2023] NZHC 1153

UNDER	the Property (Relationships) Act 1976 and the Family Proceedings Act 1980
IN THE MATTER OF	an appeal against the decision of the Family Court
BETWEEN	Mrs K Applicant
AND	Mr K Respondent

On the Papers
Counsel:	B M Burke for the Applicant
Judgment:	15 May 2023

JUDGMENT OF GWYN J

(Order to vacate property)

K v K [2023] NZHC 1153 [15 May 2023]

Introduction

[1]    On 28 November 2022 I gave judgment on Mrs K’s application for an order under s 182 of the Family Proceedings Act 1980 (FPA).1

[2]    I made an order pursuant to s 182 of the FPA varying the Trust Deed of a Trust settled by the parties jointly, to enable an equal division of the Trust’s assets between the parties, subject to certain specified adjustments in the applicant’s favour.

[3]    I also made an order removing the respondent as trustee of the Trust, pursuant to s 112 of the Trusts Act 2019, with a consequential order vesting all Trust property in the applicant and LW Nominees Ltd , as trustees of the Trust (the Trustees).2

[4]    The orders also specifically provided3 that the respondent was to cooperate with the marketing of the family home or vacate the family home immediately. In the event of opposition from the respondent, the trustees were granted leave to come back to the Court to seek an order to remove the respondent from the family home.

[5]    I also reserved leave to either party, or to the applicant and LW Nominees in their capacity as trustees of the Trust, to seek further directions or orders that may be necessary to give effect to the judgment.4

Background

[6]    The background to this matter is fully set out in the judgment, but I summarise the key points for the purposes of this application.

[7]    The parties have a family trust (Trust) which was settled by them jointly on 24 August 2005, four years after the commencement of their de facto relationship.

[8]    The parties were the settlors, trustees, appointors and Class A beneficiaries of the Trust. Their children are Class B beneficiaries of the Trust. The independent

1      K v K [2022] NZHC 3123 [judgment].

2 At [110].

3      At [113(e)].

4      At [113(v)].

trustee is LW Nominees Ltd. Mr Ryan Stockman is an accountant for the Trust and as an Advisory Principal at BDO, New Plymouth, he is one of the directors of the independent trustee company.

[9]The principal assets of the Trust are:

(a)The family home. This is a five-hectare rural lifestyle and grazing farmlet. Throughout the marriage, the family home was occupied as the parties’ family residence.

(b)A stand of mature pine trees on the family home property.

(c)The family businesses, a dairy and takeaway outlet. The land and buildings that the businesses operate out of are owned by the Trust.

Application for further orders

[10]   By memorandum of 19 April 2023, counsel for the applicant seeks an order pursuant to [113(e)] of the judgment, to remove the respondent from the family home.

[11]The application for a further order is supported by an affidavit of Mr Stockman.

[12]   Mr Stockman deposes that he has made a number of attempts to work with the respondent to facilitate the division of Trust property between the applicant and the respondent, since the release of the judgment. Mr Stockman details those attempts, commencing on 12 December 2022 and most recently on 23 February 2023.

[13]   As Mr Stockman’s evidence sets out, the purpose of those attempts was to discuss the orders made in the judgment with the respondent; to organise a real estate agent to make a valuation of the family home property; and to put the property on the market.

[14]   The essence of Mr Stockman’s evidence is that, on a number of occasions, the respondent has asked for further time to raise finance to buy out the applicant’s share of the Trust assets. He has refused to allow a real estate agent to view the family home

property to enable a market appraisal to be completed. However, Mrs K was able to arrange a market appraisal for the home whilst Mr K was on a holiday in the South Island. Mr K has not cooperated in ensuring any maintenance and repair work to the family home property necessary for the purposes of sale.

[15]   In the meantime Mr K has continued to operate the business and Mrs K is fearful that he is continuing to take cash out of the business to maintain his lifestyle.

Discussion

[16]   The applicant now seeks an order removing the respondent from the family home property.

[17]The orders made in the judgment included:5

The respondent is to co-operate with the marketing of the property as required by the trustees or vacate the family home immediately. In the event of any opposition from the respondent to the proposed marketing or sale of the property the trustees have leave to come back to this Court to seek an order to remove the respondent from the family home to achieve a vacant property for sale.

[18]The respondent has not appealed this order, or any other part, of the judgment.

[19]   Included in the correspondence from the  trustees  to  Mr  K,  appended  to Mr Stockman’s affidavit, is a letter specifically referring to [113(e)] of the judgment and to the discretion the trustees have to come back to the Court to seek an order to remove Mr K from the family home. Mr K did not respond to that letter. The applicant has served this application on Mr K but he has not filed anything in response.

[20]   Having regard to the evidence of Mr Stockman and the submissions contained in Ms Burke’s memorandum of counsel, I conclude that the respondent, Mr K is in breach of the order at [113(e)] of the judgment, in that he has refused or failed to cooperate with the marketing of the property or to vacate the family home immediately.

5      At [113(e)].

[21]   The respondent is in breach of the Court’s orders and is an unlawful occupier of the family home.

Orders

[22]I therefore make the following orders:

(a)The  respondent  is  to  vacate  the  family  home  property  within    10 working days of this judgment.

(b)If the respondent fails to comply with the order at (a) above, the trustees may apply to the Registrar of the Court for a Possession Order in respect of the property.

(c)The trustees of the Trust have leave to seek any further directions that may be necessary to give effect to this judgment.

Costs

[23]The applicant is entitled to the costs of this application on a 2B basis.

Gwyn J

Solicitors:

Connect Legal, New Plymouth

Copy to:

Mr K