Koni v Koni HC Auckland CIV-2011-404-1634

[2011] NZHC 893

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-1634

IN THE MATTER OF     the Property (Relationships) Act 1976

BETWEEN  DAVID WALTER KONI Appellant

ANDLYNNE ANNE KONI Respondent

Hearing:         10 August 2011

Counsel:         Appellant (In person)

A Goodwin for Respondent

Judgment:      10 August 2011

ORAL JUDGMENT OF MILLER J

[1]      This appeal from the Family Court raises three short points relating to interim orders made.

[2]      It is necessary to outline the background.  This is a property relationship case with what has been described as a complicated history.  Detailed findings were made in a judgment delivered  on 28 October 2009 in the Family Court.   Under that judgment various items were vested in each of the parties and adjustments were ordered.  One such item was a powerboat which was vested in Mr Koni although it was, and remains, in Mrs Koni’s possession.

[3]      Mr Koni appealed, saying that he ought to have been permitted to adduce further evidence.  He was given leave to do so in relation to certain matters, one of which was the valuation of the boat.  Following the appeal the matter was remitted to

the Family Court for a hearing of the issues in respect of which further evidence was

DAVID WALTER KONI V LYNNE ANNE KONI HC AK CIV-2011-404-1634 10 August 2011

to be adduced.   That resulted in the judgment which is the subject of the present appeal.  It was delivered on 23 February this year.

[4]      In the Family Court Mr Koni sought an order requiring Mrs Koni to deliver the boat to a named person at Whakatane on terms, and she applied for payment of

$45,000 from joint funds held in trust to equalise the distribution of the boat, and for

$30,000 from the same funds as an interim distribution, and for costs.

[5]      The Judge noted that in the first judgment the boat had been allocated to Mr Koni,  who  apparently  wanted  it,  and  the  Court  had  in  that  same  judgment accepted a valuation of $40,000, requiring Mr Koni to pay Mrs Koni $20,000 by way of adjustment.  That valuation was based on evidence of the boat’s value as at 2008. On appeal this Court had held that it was reasonable to allow Mr Koni to supply an updated valuation.  He did so when the matter returned to the Family Court.  The valuation noted that the boat needed grooming and a cut and polish, and assumed the motor was in good order, but once that was done it would have a retail value of between $42,000 and $45,000.  Mr Koni submitted that he was entitled to the boat pursuant  to  the  order  made  in  2009,  and  that  it  should  be  valued  at  $42,000. Mrs Koni proposed that the value be fixed at $45,000.  Mr Koni further contended that she should not be paid any sum of money from the joint funds, whether by way or adjustment or interim distribution.

[6]      The Judge observed that the solicitors held approximately $480,000 in trust for the parties from the sale of their former home, meaning that there was plenty of scope for an interim distribution and an adjustment payment to Mrs Koni for the boat.

[7]      The Judge accepted that he was not in a position to assign a final valuation to the boat but for purposes of his judgment he accepted the range of $42,000 to

$45,000.  The precise figure was to be determined at the substantive hearing.   He ordered that Mr Koni might uplift the boat immediately and retain it as his separate property, but declined to order Mrs Koni to deliver it to him.   A compensating payment was to be made to Mrs Koni from the joint funds held by the solicitors.

The Judge fixed that at $43,500 and ordered that Mrs Koni shall account for the remaining $1,500 at the final hearing.

[8]      In addition, the Judge was satisfied that an interim distribution of $30,000 could safely be made having regard to the likely result of the litigation.  Put another way, even if Mr Koni succeeded in all of his claims Mrs Koni was likely to be allocated a greater sum from the funds held in trust.   The Judge noted that the substantial delay in resolving the proceedings was occasioned by Mr Koni.  I take that to be a reference to the original appeal to this Court, which resulted from Mr Koni’s failure to call evidence in the Family Court when such evidence was available.

[9]      On appeal, Mr Koni has filed short submissions.  He expresses concern that the outboard motor may not be in good condition, since he has not seen it since the boat was taken by Mrs Koni in 2008.  He does not accept the terms on which the boat is to be delivered.  It was his wish that she deliver it to a firm in Whakatane for assessment of the condition of the motor, that she pay for grooming, that she pay to have the trail boat stand, which was sawn off when she took the boat, replaced, that she pay for registration and a warrant of fitness for the boat trailer, that she supply a new marine battery, that she purchase a replacement solar panel, and that she pay for transporting the boat to Auckland.   The Family Court having declined to impose these conditions upon the return of the boat, Mr Koni says he does not want it.

[10]     It is far too late to take that stance on appeal.   The boat was assigned to Mr Koni in the original Family Court judgment, which is not under appeal.  The boat is  his  separate  property.    If  he  prefers  to  leave  it  with  Mrs  Koni  that  is  his prerogative.   Nor am I prepared to impose the conditions that he sought in the Family Court.   It is necessary to emphasise that the judgment under appeal is an interim judgment.  The Judge recognised that the valuation might be adjusted.  When the matter is finally resolved in the Family Court it will be open to Mr Koni to demonstrate that costs had to be incurred to get the boat into saleable condition, as the valuer assumed.  The Family Court may make an adjustment in his favour, since the valuation was clearly premised on the boat being groomed and having a working motor.  That adjustment need not be confined to the sum of $1,500, or for that matter

$3,000, which bears no necessary relationship to the expense of getting the boat into saleable condition.  That is not, it goes without saying, to suggest that the Judge was wrong to rely on the valuation for purposes of fixing the matching distribution to Mrs Koni.

[11]     Mr Koni also opposes the payment of a matching sum to Mrs Koni from the sums held in trust.  In this, and in relation to the interim distribution, his complaint is in part that Mrs Koni has not accepted reasonable settlement offers.   He also complains that there has been much delay attributable to obtaining fixtures in the Family Court.  And he notes that all previous distributions have been equal in the sense that a matching distribution was made to him.

[12]     These concerns raise no viable appeal point.   It was plainly open to the Family Court  to  direct  in  the  interim that  there be a compensating payment  to Mrs Koni for the boat, and it cannot be said that the Judge was wrong to order an interim distribution to her.  He was not required to make a balancing distribution to Mr Koni, who did not ask for one.   It was open to him to attribute the delays to Mr Koni.  The Court is in no position at this stage to determine whether settlement offers were reasonable or whether Mr Koni was indeed responsible for delays in resolving the matter.

[13]     The appeal is accordingly dismissed.   Mrs Koni is entitled to costs of this appeal which are to be calculated on a 2B basis.  Memoranda may be filed if costs cannot be agreed.

Miller J

Solicitors:

Corban Revell, Waitakere City for Respondent