Lambert v River

[2024] NZHC 1690

NOTE: 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 AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2673

[2024] NZHC 1690

UNDER

Section 8 of the Domestic Actions Act 1975

IN THE MATTER

of an appeal against a decision of the Family Court of North Shore

BETWEEN

STEVE LAMBERT

Appellant

AND

KATIE RIVER

Respondent

Hearing:	6 June 2024
Appearances:	D Chambers KC for the Appellant No appearance for the Respondent
Judgment:	3 July 2024
Reissued:	5 November 2024

JUDGMENT OF WHATA J

This judgment was delivered by me on 3 July 2024 at 4.00pm,

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:
ARL Lawyers, Lower Hutt

Copy to:

D Chambers KC, Bankside Chambers, Auckland K River

LAMBERT v RIVER [2024] NZHC 1690 [3 July 2024]

[1]    This is an appeal by Mr Lambert against the decision of the Family Court dismissing Mr Lambert’s application by way of formal proof to have an engagement ring returned to him by Ms River.1 He claims the formal proof process miscarried and the Court wrongly applied Oliver v Bradley to the present facts.2

[2]    I have come to the view that there was procedural error and having reviewed the admissible evidence, I allow the appeal. I make no definitive finding as to the principles established in Oliver because, on the admissible evidence, the merits clearly favour the return of the ring. My reasons follow.

Background

[3]    Mr  Lambert  and  Ms  River  began  seeing  each  other  in  May  2020.  Their relationship quickly progressed, and they began living together in July 2020. They resided at a property held by Mr Lambert’s family trust. Mr Lambert proposed to Ms River on 13 July 2022. He purchased an engagement ring in contemplation of his proposal in September 2021. An insurance appraisal puts the value of the ring at

$45,000. Their relationship ended on 20 November 2022. Mr Lambert asked Ms River to return the engagement ring. She refused.

Process

[4]    On 23 March 2023, Mr Lambert made an application for an order under s 8 of the Domestic Actions Act 1975 requiring that Ms River “deliver to him or his legal representative the ring given to her at the time they agreed to marry” on the basis that:

(a)They agreed to marry on 13 July 2022 when Mr Lambert proposed to her.

(b)When Ms River agreed to marry, he gave her a ring.

(c)The ring was given in contemplation of marriage.

1      The names of the parties have been anonymised as they were in the Family Court decision Lambert v River [2023] NZFC 12359, [2023] NZFLR 626.

2      Oliver v Bradley [1987] 1 NZLR 586 (CA).

(d)The agreement to marry was terminated on 20 November 2022.

(e)The termination of the agreement has directly caused him the loss of the ring.

(f)Ms River has refused to return the ring despite his requests.

(g)An order that the ring be delivered back to Mr Lambert is necessary to restore him to the position he would have been in had the agreement to marry never been made.

[5]    In support of this application, Mr Lambert filed an affidavit confirming each of the above matters. He also attached correspondence between his counsel and solicitors then acting for Ms River. Included in those communications are claims that Ms River made contributions to  the  relationship  and  corresponding  denials  by  Mr Lambert.

[6]    Mr Lambert then applied and obtained  orders  for  substituted  service  on Ms River’s parents, and she was so served on 8 May 2023. Ms River responded to the application by letter on 12 May 2023. In that letter, she relevantly claims that she had been financially impacted by the relationship, had worked tirelessly in the home and had worked tirelessly to help sell two homes. She also alleges Mr Lambert was abusive, bought her apology gifts and gave her $10,000 at the end of the relationship, but she had to use this to pay her lawyers to obtain protection orders.

[7]    Mr Lambert then made an application for formal proof on 31 May 2023, on the basis that Ms River had not filed a notice of defence or a notice of intention to appear. Rather than set the matter down for  formal  proof, Judge  Partridge  directed that  Ms River “file a formal notice of defence and affidavit within 14 days… [or] she risks the court allocating a formal proof hearing and not reading any of the information that she files unless it is in the appropriate form”.

[8]    Ms River then filed a notice of response on 8 June 2023, but it appears not in the proper form. In the response, she provides a detailed account of her position,

expanding on the matters noted in her letter: that Mr Lambert employed her and claimed a Covid-19 subsidy for her work; she spent any money she earned on household costs; she sacrificed her career to project manage the sale of two homes; and she managed every aspect of the home and domestic chores. Ms River said the ring justified the sacrifices she made.

[9]    On 9 June 2023, notice was given of a judicial conference set down for 19 July 2023. Ms River did not attend this conference. Mr Lambert’s application for formal proof was renewed. Judge Maude noted that this was the only course the court could take. A one-hour hearing was allocated. There were also directions that:

(a)If there was any updating evidence, it was to be filed seven days prior to the hearing.

(b)Submissions were to be filed seven days prior to the hearing.

(c)Other than as directed as to updating evidence, no further evidence was to be filed without leave and that if Ms River sought to be heard, it would now be at what was anticipated to be a formal proof hearing.

[10]   Mr Lambert filed an updating affidavit denying all of the allegations made by Ms River as untrue, other than that they were in a short-term relationship, and he supported her financially by way of a $10,000 payment after they separated.

[11]   It is also apparent that affidavit evidence of Ms River and Mr Lambert, filed in respect of a family protection matter,  was tabled with the court.  In that affidavit,  Ms River refers to alleged abuse of her by Mr Lambert. In his affidavit, he refutes the allegations of abuse and says he only ever acted physically in self-defence. He also details his financial contributions to the relationship. He notes that during their relationship they lived in houses purchased by a family trust settled by Mr Lambert. He also says that:

Katie has lived with me ever since. I have paid for everything our entire relationship, including overseas holidays, clothing, beauty treatments, dental work, household outgoings, all food and meals out, her dog Alfie and transfers directly to her bank account (sometimes weekly). Since June 2020 I estimate

I have spent in excess of $100,000 on Katie. Katie has not contributed financially to our relationship nor did she work until a couple of months ago. I had encouraged her often over the past two years to look for employment as I thought it would be good for her mental health. Katie has said to me on more than one occasion that she thinks she needs to go to counselling for past traumas in her life.

Judgment of the Family Court

[12]   The formal proof hearing came before Judge A M Manuel. The Judge made a number of key findings:3

[11]   The parties met and began their de facto relationship during the Covid- 19 period. Ms [River] was employed by [details deleted] and was still being paid at the time. She was in her late 20s and had about $20,000 in savings. Mr [Lambert] was about 40 and the principal dealer for a [company]. He was the managing director of the company [name deleted]. In comparison to Ms [River], he had substantial wealth. Ms [River] moved to live with him in a home held by the trustees of Mr [Lambert]’s family trust. They wanted to have children together and tried to conceive throughout the relationship, attending a first appointment at a fertility clinic in July 2020, very soon after their relationship began. She says that at his suggestion she left her job and was employed as a “full time executive assistant” to him, and he then claimed the Government Covid-19 subsidy. Ms [River]’s duties did not match the job description in her employment contract. Rather, she carried out household duties and sold second hand product while the Government Covid subsidy was used to pay household and living expenses. She says this “employment” arrangement came to an end when the Government subsidy ended. Ms [River] wanted to return to the paid workforce, but her background was in hospitality and she found few jobs in the offing. She says she continued to carry out household duties, which freed Mr [Lambert] up to work in his own business. Just prior to Auckland moving to an alert level 4 lockdown in August 2021 she moved with Mr [Lambert] to [location 1] to avoid the rigours of the lockdown. The move made it more difficult for her to return to the paid workforce and left her isolated from friends and family. She also says she assisted with the sale of Mr [Lambert]’s (or his trusts’) properties at [location 1] and [location 2] and furniture and furnishings which helped to achieve sales on favourable terms. The properties at [location 1] and [location 2] were replaced by the purchase of the couple’s “forever home” at [location 3].

[12]    Mr [Lambert] denies the extent of the contributions which Ms [River] claims to have made to the property and the relationship and denies that her performance of household duties freed him up to work in his own business. It is clear from his evidence that he views himself as the main contributor to the relationship, certainly in a financial sense. He maintains that the return of the ring is necessary to restore him to the position he would have been in if they had never agreed to marry.

[13]   After the demise of the relationship Mr [Lambert] remained living in the [location 3] property, and continued to run his business as dealer principal for a [company]. Ms [River] moved to her parents’ home. She was not in paid

3      Lambert v River, above n 1.

employment. Her savings were gone. Mr [Lambert] paid her the sum of

$10,000, which she says was spent on legal fees for the family violence proceedings and negotiations prior to the issue of the ring proceedings.

[14]     In correspondence which was produced to the Court Mr [Lambert]’s lawyers maintained to Ms [River]’s then lawyers that because the de facto relationship was one of short duration and s 14A of the PRA did not apply, he was at liberty to make an application under the DAA for the return of the ring. Ms [River]’s lawyers countered that s 14A of the PRA did in fact apply and under s 10 of the PRA the ring was Ms [River]’s separate property because it was a gift from one party to the other.

[15]    Ms [River] and her lawyers were evidently taken by surprise when the claim for the ring was made because they had understood that the undertakings in the family violence proceedings had ended all disputes between the parties. Mr [Lambert]’s lawyers maintained otherwise. Over time Ms [River] ran out of funds to pay her lawyers and she was either self-representing or played no part in these proceedings.

(footnotes omitted)

[13]The Judge then referred to the Court of Appeal’s decision in Oliver, noting:

[18] The three Court of Appeal Judges who heard Mr Oliver's appeal each expressed  views  about  the  way  in  which   the  DAA  should   operate. The majority view (as set out in the judgments of Cooke P and Henry J) was to the effect that contributions to a de facto relationship should be taken into account holistically in applications under the DAA.

[14]   With that guidance  in  mind,  the  Judge  identified  two  difficulties  with  Mr Lambert’s application:

[26]      The first difficulty relates to the value of the ring. There is no evidence about what Mr [Lambert] paid for it or how much it is now worth. The only evidence provided is a document which may well be sufficient for insurance purposes but is insufficient for the purposes of the Court.

[27]      The second difficulty lies in the risk of isolating a single item of property under the DAA where a couple have lived in a de facto relationship. In this case the parties lived together for about 2½ years and it is apparent from the evidence available that during the course of their de facto relationship the parties both made various contributions - both financial and non-financial

- notwithstanding that some of these are in dispute.

[15]She also observed:

[28] If a single item such as the ring is dealt with in a vacuum and the contributions made by the parties to property and to the relationship more generally are put to one side, an injustice may occur. The evidence before the Court is insufficient to deal with this proceeding holistically. The approach which the Court is asked to take by Mr Lambert was not endorsed by the

majority of the Court of Appeal in Oliver v Bradley, which approved an overall assessment of the parties' contributions in cases where there was not only an agreement to many but a concurrent de facto relationship.

[16]   In then rejecting the application, the Judge identified two risks with the order sought:

(a)if Ms River no longer has  the  ring,  she  may  be  obliged  to  pay  Mr Lambert a sum in excess of its actual value; and

(b)the parties would not necessarily be restored overall to the positions they would have been in had they never agreed to marry in respect of the property.

Threshold for appeal

[17]   The issue of threshold in this context was not addressed in submissions. However, given I have found clear procedural error, I simply approach the merits afresh.

The alleged errors

[18]Three key errors are alleged:

(a)First, the Court should not have considered the information supplied by Ms River as she had not filed a formal notice of defence, did not file formal evidence in support of her position and did not appear at the hearing despite being notified of the need to formalise her position and of the formal proof hearing.

(b)Second, the Court  wrongly  treated  the  information  provided  by  Ms River as creating an affirmative defence that she had contributed to the relationship and the property, such that the Judge felt unable to deal with the ring in isolation.

(c)Third, the Judge wrongly applied the dicta in Oliver to the present facts insofar as it required an overall assessment of contributions. Rather, on the facts in Oliver, an overall contribution approach was appropriate.

[19]   I address the first two claims together as a claim of procedural error. I will then turn to the alleged error of principle.

Procedural error

[20]   The formal proof process is governed by r 15.9 of the District Court Rules 2014, which is identical to the equivalent r 15.9 of the High Court Rules 2016.        It states:

15.9Formal proof of other claims

(1)This rule applies if, or to the extent that, the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, and the plaintiff seeks judgment by default for other than a liquidated demand.

(2)The proceeding must be listed for formal proof and no notice is required to be given to the defendant.

(3)After a proceeding is listed for a formal proof hearing, no statement of defence may be filed without the leave of a Judge granted on the ground that there will or may be a miscarriage of justice if judgment by default is entered, and on such terms as to time or otherwise as the Judge thinks just.

(4)The plaintiff must, before or at the formal proof hearing, file affidavit evidence establishing, to a Judge’s satisfaction, each cause of action relied on and, if damages are sought, providing sufficient information to enable the Judge to calculate and fix the damages.

(5)If the Judge before or at the formal proof hearing considers that any deponent of an affidavit filed under subclause (4) should attend to give additional evidence, the Judge may direct accordingly and adjourn the hearing for that purpose.

[21]   The formal proof process was helpfully described by Duffy J in Ferreira in the following way:4

[33]      Now r 15.9 of the High Court Rules applies to a formal proof hearing when no statement of defence has been filed and the plaintiff seeks judgment by default for other than a liquidated demand, which is the case here. This

4      Ferreira v Stockinger [2015] NZHC 2916.

rule provides a mandatory procedure: “it does not involve the immediate entry of judgment by default”.

[34]      Under r 15.9(4) a plaintiff must establish to a Judge's satisfaction each cause of action relied on and, if damages are sought, provide sufficient information to enable the Judge to calculate and fix the damages. The affidavit evidence required by r 15.9(4) should not include evidence that the Court could not receive if objection was raised by the defendant.

[35]      When it comes to the extent to which the plaintiff's evidence is required to satisfy a Judge under r 15.5(4) the presence of r 15.5(5) gives some indication of what may be required. Rule 15.5(5) permits a Judge to direct a deponent of an affidavit to attend the Court to give additional evidence. The fact the rules make provision for a Judge hearing a formal proof to hear from witnesses whose evidence has obviously not been challenged by an opposing party suggests to me that the level at which a Judge is required to satisfy herself regarding the plaintiff's evidence is much the same as it would be if the proceeding had gone to trial. This view of r 15.9 is consistent with the observation of Kós J in Neumayer that the r 15.9 procedure may not provide any advantage over allowing matters to run to trial.  The view that I take of   r 15.9 is also consistent with the very helpful discussion of the earlier version of r 15.9 in Chen v Zhong, where Wylie J makes it clear that in a claim for unliquidated damages where no statement of defence has been filed, it does not necessarily follow that allegations of fact made in the statement of claim are deemed to be admitted.

[36]      On the other hand in a formal proof hearing, the plaintiff is only required to prove a cause of action so far as the burden of proof lies on the plaintiff. The plaintiff is not required to engage with any matters of affirmative defences, set-off or counterclaim.

(footnotes omitted)

[22]Furthermore, r 15.10 provides:

15.10Judgment may be set aside or varied

Any judgment obtained by default under rule 15.7, 15.8, or 15.9 may be set aside or varied by the court on such terms as it thinks just, if it appears to the court that there has been, or may have been, a miscarriage of justice.

[23]   This rule provides a broad power to remedy miscarriage of justice. As the Court of Appeal said in Xiao v Department of Internal Affairs:5

[42]      A defendant who fails to take steps to defend a proceeding will have been served with a statement of claim that satisfies the pleading requirements set out in pt 5 sub-pt 4 of the High Court Rules, including identifying the distinct causes of action and facts relied on for it and specifying the relief sought. A defendant served with proceedings brought under the AML/CFT

5      Xiao v Department of Internal Affairs [2019] NZCA 326.

Act is taken to know that pecuniary penalties of up to $1 million and $2 million for each civil liability act could be imposed.

[43]      The defendant will also have been served with a notice of proceeding stating the consequences of not filing a statement of defence from which the defendant will know that if steps are not taken the plaintiff may obtain judgment by default without further notice to the defendant. At the formal proof hearing, a judge must be satisfied by affidavit evidence of each cause of action relied on and sufficient information must be provided to allow the Judge to calculate and fix damages. If a judge is not satisfied, the deponent can be required to give further evidence. If prejudice does result such that a miscarriage of justice occurs or is likely to occur, the position can be rectified by an application to vary or set aside under s 5.10.

[44]      Rules 15.9 and 15.10 therefore operate in tandem to provide an effective procedure that caters fairly for the interests of both parties. Plaintiffs are provided with a mechanism for proving claims where a defendant has failed to take any step to defend the claim. Defendants have the protection to being able to apply to set aside or vary the judgment in the event of a miscarriage of justice. We consider that this regime provides adequate protection and do not see any need to require service of evidence and submissions relating to penalty prior to a formal proof hearing. To the contrary, adding a requirement for the service of further documents before a plaintiff can proceed to judgment would simply increase the cost to the plaintiff and cause further delay, especially where service is difficult (for example where a defendant has gone overseas). Moreover, such a requirement would also conflict with r 6.20 which sets out that a party who does not provide an address for service does not have an entitlement to be served with further documents.

[24]    In summary, r 15.9 serves the plaintiff’s interests, in the face of a defendant who has refused to engage with litigation. While they must show the key elements of their claim are proven, including as to quantum, they are not required to disprove unsubstantiated and unproven claims of an absent defendant. To the extent that a defendant might nevertheless have a proper basis for challenging a plaintiff’s claim   r 15.10 provides a vehicle for ventilating that challenge provided the defendant can show miscarriage.

[25]   For completeness, I note the authors of McGechan state that the requirement to be satisfied means that the Judge makes up their mind — it does not import notions of burden of proof and the setting of a particular standard of proof.6 But it would seem consistent with the general principle applicable in civil proceedings that the party

6      Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [15.9.07], citing R v Leitch [1998] 1 NZLR 420 (CA) at 428.

wanting to prove a fact should do so on the balance of probabilities. I will proceed on that basis.

[26]   An important feature of this case is that Ms River filed information as part of a response to the application by Mr Lambert but took no steps to formalise her opposition in the form of admissible evidence or attending the formal proof hearing. Relevantly, the information supplied by her about her contributions was not supported by affidavit evidence. The Family Court gave her the opportunity to formalise her position. She did not. She was then notified of a case management conference, such notification foreshadowing that if she did not formalise her opposition, then the matter might proceed by way of formal proof. She did not then attend that case management conference and the matter was set down for hearing. She was notified of the hearing and did not attend.

[27]   The relevance of all of this is that once the formal proof fixture was allocated, leave was then needed to file a statement of defence and there is no scope for information supplied by a defendant to be treated as admissible evidence in the formal proof. To do otherwise would undermine the operation of the formal proof process contemplated by r 15.9. It would place the plaintiff in the invidious position of having to respond to unproven claims from a deponent they cannot cross examine. It could well place the defendant in a better position than they would have been had the matter actually gone to a defended trial. In fact, that is exactly what happened here. Ms River has the ongoing benefit of  the  ring  without  having  to  defend  the  claim,  while Mr Lambert now has no obvious recourse against her.

[28]   None of this obviates the need for a formal proof plaintiff to satisfy the Court that their claim is properly established. The elements of the formal proof claimant must still be proven. It remained necessary for Mr Lambert to show that his claim to the ring is justified in terms of s 8. But the Judge effectively treated the information supplied by Ms River as if it were admissible evidence in the formal proof.7 She erred in doing so.

7      See Lambert v River, above n 1, at [11]–[13] and [15], reproduced above at [12].

[29]   Mr Lambert also complains that the Judge did not afford him the opportunity to provide additional evidence, for example, in relation to the valuation of the ring contrary to the process envisaged by r 15.9(5). In this regard, Mr Lambert notes that he offered to give additional evidence about contributions and the valuation of the ring, but the Judge did not take up this offer. This is recorded in the notes of the hearing as follows:

A.I’m really in your Honour’s hands how you would like the hearing to run today, whether you would like Mr Lambert to swear his evidence or take it as read or whether you are just happy for me to go in through my submissions.

…

Q.       I don’t have questions to ask Mr Lambert and his evidence is sworn.

…

A.… Mr  Lambert is able to give evidence of his contributions if you   want to take that into account.

Q. I’m hearing submissions, you’ve had an opportunity to call him as a witness.

…

Q. This is a formal proof, I’m  happy to deal  with the matter on the  evidence that’s to hand.

[30]   Given the significance the Judge placed on contributions, Mr Lambert should have been given the opportunity to provide further evidence about contributions, especially given the weight afforded to the information supplied by Ms River.

[31] Having identified these errors, I assess the merits afresh below at [36]. I now briefly turn to the alleged error of principle.

Error of principle

[32]Section 8 of the Domestic Actions Act states:

8        Property disputes arising out of agreements to marry

(1)Where the termination of an agreement to marry gives rise to any question between the parties to the agreement, or between 1 or both of the parties to the agreement and a third party, concerning the title to or possession or disposition of any property, any such party may, in

the course of any proceedings or on application made for the purpose, apply to the court for an order under this section.

(2)Every application under this section shall be made within 12 months of the date of termination of the agreement or within such longer period as the court may allow.

(3)Subject to subsection (6), on any such application the court shall make such orders as it thinks necessary to restore each party to the agreement, and any third party, as closely as practicable to the position that party would have occupied if the agreement had never been made.

(4)In determining the orders to be made on any such application, the court shall not take into account or attempt to ascertain or apportion responsibility for the termination of the agreement.

(5)In order to give effect to subsection (3), but without limiting the general power conferred thereby, the court may, on any such application, notwithstanding that the legal or equitable interests of all parties in any property may be defined, or that a party may have no legal or equitable interest in any property, make orders for—

(a)the sale of all or part of the property and the division or settlement of the proceeds in such shares and upon such terms as it thinks fit:

(b)the partition or division of the property:

(c)the vesting of property owned by 1 or 2 parties in 2 or more parties in common in such shares as it thinks fit:

(d)the conversion of joint ownership into ownership in common in such shares as it thinks fit:

(e)the payment of sums of money by any party to any other party or parties.

(6)Where any property in dispute is a gift from a third party and the court is satisfied that the third party does not wish the gift to be returned to him, the court may make such orders with respect to that property as appear just in all the circumstances, but without taking into account or attempting to ascertain or apportion responsibility for the termination of the agreement.

(7)An order made under this section shall be subject to appeal in the same way as an order made by the District Court or the High Court in an action in the District Court or in the High Court, respectively, would be.

(8)Nothing in this section shall limit or affect the right of any person to bring an action for money had and received.

[33]   The Judge adopted the majority view in Oliver to the effect that contributions to a de facto relationship should be taken into account holistically under the DAA,8 referring in particular to the observation by Cooke P that “restoration can be effected as closely as practicable by dividing the property built up by their common efforts in broad proportion to their respective contributions of all kinds.”9 This is drawn in contrast to the minority view of Casey J, who preferred to see s 8 confined to what he thought was its real purpose, namely the settlement of disputes about property acquired to mark the engagement, such as a ring in this case.10

[34]   Ms Chambers KC submitted that the Judge was wrong to decipher a principle of general application from a case concerning a family home and inflationary gain. She submits that s 8 should also be read in the context of the law at the time when the Property (Relationships) Act 1976 did not extend its provisions to de facto relationships. She also submits that instead I should simply adopt the three-step approach set out in Nye v Reid and Zhao v Hung, namely:11

(a)Was there an agreement to marry?

(b)Was the property that Mr Lambert gave related to the agreement?

(c)Did the termination of the agreement directly cause a loss in respect of the property?

[35]   As foreshadowed above, I do not propose to resolve the point of principle with finality. I have not had the benefit of a contradictor and I think it problematic to make a definitive ruling on a principle of potentially much wider application. Instead, I overlay the three-step approach set out in Nye and Zhao with an assessment of whether, on the facts of this case, restoration demands division according to respective contribution.

[36]Turning then to my assessment, the evidence is clear:

8      Lambert v River, above n 2, at [17].

9      At [19], referring to Oliver v Bradley, above n 1, at 593.

10     At [21], referring to Oliver v Bradley, above n 1, at 591.

11     Nye v Reid [1993] NZFLR 60; Zhao v Huang [2014] NZHC 782.

(a)there was an agreement to marry;

(b)Mr Lambert gave the ring pursuant to that agreement; and

(c)the termination of the agreement has directly caused the loss of the ring

— in short, Ms River simply refuses to return it.

[37]   I note that there is nothing in the information supplied by Ms River that casts any doubt on these findings. I am therefore satisfied that Mr Lambert is prima facie entitled to the return of the ring.

[38]   I turn then to examine whether restoration in this case requires division according to respective contributions to the relationship. The overwhelming weight of the admissible evidence favours the return of the ring without adjustment for respective contribution to the relationship. Mr Lambert paid for the ring, covered the lion share of their costs of living while together and paid Ms River $10,000 on their separation. He denies that Ms River made any substantial financial contribution to their relationship. He made himself available at the formal proof hearing to be tested by the Judge on this if there was any doubt about his claims.

[39]   To be clear, I have not taken into account assertions in the information filed by Ms River that she made substantial financial contributions to the relationship. As I have said, Ms River did not attend the hearing and that information was not substantiated in the usual way by oath or affirmation. I am simply not in a position to assess the weight and worth of her claims, let alone assess whether overall they demand the type of adjustment, in the face of the all the proven contributions made by Mr Lambert, that might justify retention of the ring by her.

[40]   I also note for completeness Ms River remains free to apply to have the judgment set aside pursuant to r 15.10. She must show miscarriage, but nothing in this judgment, which is limited to the assessment of the admissible evidence, precludes relief should Ms River show miscarriage has occurred.

Damages and costs

[41]Three final issues require resolution, namely:

(a)whether I should also make a damages order in the sum of the $45,000;

(b)a claim to 50 per cent increased costs in respect of the Family Court determination; and

(c)costs in this Court.

[42]    Mr Lambert has now provided affidavit evidence confirming that the assessed market value of the ring is $45,000. So, there is now no gap in the evidence. However, I have reviewed the application filed by Mr Lambert. He did not formally seek relief in the form of the payment of a sum of money. As an order to pay money has potentially far-reaching consequences for Ms River, I invited further submissions from Mr Lambert as to the basis upon which I may make such an order.

[43]   In response, Ms Chambers referred to the broad power conferred by s 8(5) of the Domestic Actions Act to give effect to orders made under s 8(3) — see [32] above. She further submits that a “specific application was made for an alternative order if the ring was not returned being the payment of the sum of $45,000”, as recorded at [4] of the reserved decision of the Family Court Judge. It is also submitted that Ms River must have been aware of the likely order for a sum of money to compensate for the ring if it was not returned because she received a copy of Mr Lambert’s affidavit which annexes a valuation of the ring. She also notes that ancillary orders were sought at the Family Court. The Family Court judgment served on Ms River also refers to the alternative relief sought. On that basis, Ms Chambers submits I have jurisdiction on appeal to make the order and without it there is little incentive for Ms River to comply with the Court order.

[44]   While I acknowledge that the Family Court appears to have proceeded on the basis that the alternative relief was properly pleaded, it was not. There was no formal application for payment of a judgment sum in lieu of the ring. There being no formal application for such relief, there is no jurisdiction to grant it by way of formal proof.

This is not simply a matter of quantum. Mr Lambert sought the return of the ring. That is a claim to specific property, not damages for conversion or payment in lieu. This may seem a small point, but relief is granted in terms of the pleaded cause of action and not otherwise. To my mind, were I to expand the relief sought without further recourse to Ms River, who might for example wish to dispute quantum had she been served with a formal application for payment in lieu, r 15.10 would inevitably come into frame. It does not matter that Ms River may have interpreted Mr Lambert’s evidence to include such relief. The formal proof arises on the failure to file a proper defence to the pleaded cause of action and not some other cause or claim. This basic point is simply but usefully made in Richmond v Heskett Holdings Limited:12

Where, however a plaintiff proceeds alone, as he did here, he is required to prove his cause of action so far as the burden of proof lies on him… At such a hearing the plaintiff is entitled to such relief as is claimed in his statement of claim and incidental thereto. But he cannot go beyond his pleadings…

[45]   A claim to $45,000 in lieu of the ring is not “incidental thereto”. It is also speculative to suppose Ms River will simply disregard an order of the court. Accordingly, I am not satisfied that this alternative relief is available to Mr Lambert under the formal proof procedure. The order for payment in lieu is therefore refused. For completeness I note nothing in this decision prevents Mr Lambert from commencing a claim for payment in lieu in the event that the ring is not returned.

[46]   I am also not prepared to make an order of increased costs in relation to the Family Court determination. Any such award of increased costs is properly a matter for that court. In particular, I am loathe to assess whether such an increase is justified without the benefit of that court’s evaluation.

Result

[47]   The appeal is allowed. There shall be an order requiring Ms River to return the engagement ring. However, I refuse to make an order for the payment of a sum in lieu.

12     Richmond v Heskett Holdings Limited (1995) 8 PRNZ 533 (HC) at 536.

[48]   There shall be an award of costs in this Court on a 2B basis to be fixed by the Registrar. The issue of costs in the Family Court is a matter for that court.

Whata