Kidd v Russell - [2018] NZHC 3032

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2018-443-36

[2018] NZHC 3032

BETWEEN
TONY KIDD

Appellant

AND

BARBARA JOY RUSSELL

Respondent

Hearing: 9 October 2018

Appearances:

S T Hurley for Appellant P Shearer for Respondent

Judgment:

22 November 2018

JUDGMENT OF GRICE J

Contents

Para No.

Background [1]

The issues on appeal [4]

Approach on appeal [5]

The advance of $50,000 to Ms Russell by her parents [10] Unequal division pursuant to s 13 of the Property (Relationships) Act 1976 [20] Were the correct legal tests applied? [27]

All contributions to the marriage partnership are treated as equal [30]

Relationship of short duration [32]

Living rent free in the home [34]

Criminal convictions [36]

Economic advantage and disadvantage to the parties [38] The Court should have divided the debts according to the division of the property [44] Conclusion [50]

Costs [52]

KIDD v RUSSELL [2018] NZHC 3032 [22 November 2018]

Background

[1] Mr Kidd and Ms Russell entered into a de facto relationship sometime around 9 September 2010. Mr Kidd moved into Ms Russell’s home in Waitara in or about November 2010. She had bought the house in March 2010 using money from a relationship property settlement in 2009. Throughout the relationship Ms Russell and Mr Kidd lived in the Waitara home.

[2] Mr Kidd and Ms Russell separated about six years later. Mr Kidd left the family home on 18 September 2016. On 19 September 2016 Mr Kidd registered a Notice of Claim against the title to the property. After their separation, it was sold on 22 September 2017 for $240,000.

[3] Relationship property proceedings were issued by Mr Kidd in November 2016. The matter went to a hearing and judgment was issued on 31 May 2018.1 In that decision, the Judge:

(a)Classified a $50,000 advance made by Ms Russell’s parents to her for the purchase of the Waitara home as a loan.

(b)Refused to award Mr Kidd a compensatory payment for occupation rental for the period in which Ms Russell occupied the home.

(c)Divided the relationship property (in effect the sale proceeds of the house) unequally in favour of Ms Russell (70 per cent) and to Mr Kidd (30 per cent).2

The issues on appeal

[4]The two main issues on appeal are whether the Judge erred in:

(a)Finding that a $50,000 advance to Ms Russell from her parents was a gift not a loan; and

1 Kidd v Russell [2018] NZFC 3989.
2 Property (Relationships) Act 1976, s 13.

(b)Dividing the relationship property, as to 70 per cent to Ms Russell and 30 per cent to Mr Kidd.

Approach on appeal

[5] Appeals from the Family Court in relationship property proceedings are governed by s 39 of the Property (Relationships) Act 1976. Section…

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 Kidd v Russell

Details

AGLC: Kidd v Russell [2018] NZHC 3032
Case: [2018] NZHC 3032
Decision Date: 22 November 2018

CaseChat Overview and Summary

The appellant, Tony Kidd, appealed against the decision of the Family Court to classify a $50,000 advance made by the respondent, Barbara Joy Russell’s parents as a loan, and the unequal division of the net sale proceeds of the Waitara home. The appeal was dismissed. The Judge’s classification of the $50,000 advance as a loan was supported by the evidence. The Judge also correctly applied the law in relation to the unequal division of relationship property. The Judge considered all contributions made by both parties to the relationship and took into account the duration of the relationship, the living arrangement, criminal convictions, and economic advantage and disadvantage. The Judge concluded that the combination of factors led to the conclusion that the relationship was extraordinary and that equal sharing of the relationship property would be repugnant to justice or completely unfair. The Judge made no error in reaching her decision.

Orders