Lavery v Lavery - [2018] NZHC 3235

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 WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-693

[2018] NZHC 3235

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of an appeal against a Division of

Relationship Property Order and Costs Order

BETWEEN

MICHAEL DAVID LAVERY

Appellant

AND

MARGARET PATRICIA LAVERY

Respondent

Hearing: 23 November 2018

Counsel:

Appellant in Person

F Ah Mu and K Ah Kuoi for Respondent

Judgment:

10 December 2018

JUDGMENT OF THOMAS J

Table of contents

Introduction [1]

Background [2]

Hearing 13 September 2017 [3]

The family home  [4]
Financial assets  [6]
Westpac home loan account  [7]

Reserved decision 21 November 2017 [12]

Costs decision 3 August 2018 [14]

LAVERY v LAVERY [2018] NZHC 3235 [10 December 2018]

Decision on application for a rehearing 3 August 2018 [16]

The appeal [17]

Final order charging Mrs Lavery with mortgage interest of $944.60 [23]

Analysis [26]

Rates and insurance charged to Mr Lavery [38]

Inheritance [41]

Evidence before the Family Court [42]

$5,000 from Mr Lavery’s father, who died on 9 July 1988  [42]
$20,161.93 from Mr Lavery’s Godmother, who died on 11 May 1989            [45]
$13,022.38 from Mr Lavery’s stepmother, who died on 16 March 2006         [48]
$10,561.89 from Mr Lavery’s grandmother, who died on 22 April 2010        [50]
$15,600 from Mr Lavery’s mother, who died on 11 May 2011  [52]

Evidence adduced for the appeal [58]

Analysis [72]
Result [98]

Introduction

[1] This appeal concerns various decisions of the Family Court relating to the division of relationship property of the appellant, Michael Lavery, and his estranged wife, Margaret Lavery.

Background

[2] In June 2016, Mrs Lavery filed an application in the Family Court for the division of relationship property. In August 2017, Mrs Lavery filed an application for orders for possession of the family home and costs.

Hearing 13 September 2017

[3] A hearing took place on 13 September 2017, as a result of which the Family Court Judge issued an oral decision.1 It appears the hearing had proceeded in a somewhat unusual fashion, with the consent of all parties, in an effort to try to settle matters without the need for a judicial determination. This was successful to a limited extent. At the end of the hearing day, the Judge made certain orders, saying she would give written reasons at a later date in respect of the more contentious issues.

1 Lavery v Lavery [2017] NZFC 7379.

The family home

[4] The Judge granted Mrs Lavery’s application for orders for possession of the family home. It is apparent Mr Lavery’s preference was to purchase Mrs Lavery’s interest in the home but that was simply not possible. The Judge made an order for sale.

[5] Mr Lavery had lived in the home from the time of separation in May…

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 Lavery v Lavery

Details

AGLC: Lavery v Lavery [2018] NZHC 3235
Case: [2018] NZHC 3235
Decision Date: 10 December 2018

CaseChat Overview and Summary

Michael Lavery appealed the Family Court’s division of relationship property between him and his estranged wife, Margaret Lavery. The Family Court had ordered that Margaret was liable for half of the mortgage interest plus bank fees for the period from separation to the date of sale. Michael challenged the amount of $944.60 and the Judge’s refusal to find that certain inheritances were his separate property. Michael also appealed the costs order, in particular in respect of the rates and insurance sums. The Judge dismissed Michael’s application for a rehearing. The appeal was heard on 23 November 2018. The court found that the calculation of Margaret’s liability was incorrect. It was apparent that there had been no attempt on behalf of Margaret to establish what the true calculation should be, counsel simply relying on a document put forward by Michael in September 2017. The correct calculation was $5,725.74. The appeal was allowed. The sum of $944.60 credited to Michael and debited from Margaret in respect of the home loan account and bank fees was deleted and replaced with the figure of $5,725.74. The adjustment to the financial assets whereby Michael was debited with $20,000 and Margaret was credited with $20,000 was deleted and replaced by a debit from Michael of $15,500 and a credit to Margaret of $15,500.

Orders