Kidd v Van Den Brink - [2010] NZCA 169

NOTE: REPORTING OF THIS JUDGMENT IS SUBJECT TO S 11B OF THE FAMILY COURTS ACT 1980
IN THE COURT OF APPEAL OF NEW ZEALAND
CA77/2010
[2010] NZCA 169
BETWEENNICOLA JANE KIDD

Applicant

ANDSTEPHEN ANTHONY VAN DEN BRINK

First Respondent
ANDA A P VAN DEN BRINK, K J VAN DEN BRINK, T C H FLEMING AND P FOSTER AS TRUSTEES OF THE HILVERSUM FAMILY TRUST NO. 2

Second Respondents

Hearing:20 April 2010

Court:William Young P, O'Regan and Arnold JJ
Counsel:J McCartney SC for Applicant

I T F Hikaka for First Respondent (appearance excused)
F J Thorp for Second Respondents

Judgment:6 May 2010 at 3 pm

JUDGMENT OF THE COURT

A We grant leave to appeal.
BCosts are reserved.

____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
[1]        This case concerns a family trust established on 17 January 1990. This was at the instance of Mr Anthony van den Brink who is the father of the first respondent, Mr Stephen van den Brink. Anthony van den Brink’s children, Stephen van den Brink and his four siblings, are the primary beneficiaries but the discretionary beneficiaries include any spouse, widow or widower, child or remoter issue of Stephen van den Brink and his siblings.
[2]        Ms Nicola Kidd and Stephen van den Brink started to live together in August 1998. They married in 2001. Their child was born in 2004. They eventually separated in 2006 and the marriage was dissolved in August 2008.
[3]        This case concerns Ms Kidd’s attempt to obtain orders in relation to the trust under s 182 of the Family Proceedings Act 1980. This section is in these terms:
182        Court may make orders as to settled property, etc.
(1)On, or within a reasonable time after, the making of an order under Part 4 of this Act or a final decree under Part 2 or Part 4 of the Matrimonial Proceedings Act 1963, a Family Court may inquire into the existence of any agreement between the parties to the marriage or civil union for the payment of maintenance or relating to the property of the parties or either of them, or any ante-nuptial or post-nuptial settlement made on the parties, and may make such orders with reference to the application of the whole or any part of any property settled or the variation of the terms of any such agreement or settlement, either for the benefit of the children of the marriage or civil union or of the parties to the marriage [or civil union] or either of them, as the Court thinks fit.
...
(3)          In the exercise of its discretion under this section, the Court may take into account the circumstances of the parties and any change in those circumstances since the date of the agreement or settlement and any other matters which the Court considers relevant.
(Emphasis added)

[4] Ms Kidd’s application for orders under this section was struck out in the Family Court by Judge Adams in a judgment delivered on 2 July 2009,[1]…

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 Van Den Brink

Details

AGLC: Kidd v Van Den Brink [2010] NZCA 169
Case: [2010] NZCA 169
Decision Date: 6 May 2010

CaseChat Overview and Summary

Nicola Jane Kidd sought orders under section 182 of the Family Proceedings Act 1980 in relation to a family trust established by Stephen Anthony van den Brink, her former husband, prior to their marriage. The trust included provisions for the benefit of the spouses of the primary beneficiaries and their children. Kidd and van den Brink married in 2001, had a child in 2004, and separated in 2006, with their marriage being dissolved in August 2008. The Family Court had previously dismissed Kidd's application for orders under section 182, a decision which was upheld by the High Court on appeal. Kidd then applied for leave to appeal to the Court of Appeal of New Zealand.

The legal issues before the Court were whether the trust was an ante-nuptial settlement for the purposes of section 182, and if not, whether dispositions of property to the trust made during the currency of the marriage were relevantly post-nuptial settlements. The Court of Appeal noted that the Supreme Court's decision in Ward v Ward established that the section should be applied consistently with the English equivalent. The Court held that the trust was not an ante-nuptial settlement as it was not made in contemplation of, or because of, the particular marriage in question. However, the Court found that it was arguable that dispositions of property to the trust made during the currency of the marriage could be considered post-nuptial settlements for the purposes of section 182.

The Court of Appeal granted leave to appeal, considering the post-nuptial settlement argument to be arguable. The Court did not wish to formally restrict leave to this point, given the nature of the appeal provision and the possibility that the case may eventually be the subject of an application for leave to appeal to the Supreme Court. A narrow grant of leave at this stage might prove to be an awkward and artificial stricture on later consideration of the case.

The Court reserved costs.

Orders