Lawson v Goff

[2025] NZHC 1857

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000602

[2025] NZHC 1857

UNDER

The Property (Relationships) Act 1976

IN THE MATTER

of an appeal against a decision of the North Shore Family Court dated 22 February 2024 in FAM-2015-090-405

BETWEEN

SARAH LAWSON

Appellant

AND

BARRY GOFF

First Respondent

Continued …

Hearing:

Further submissions received:

29 October 2024

11 November 2024

Appearances:

C J C McLean, C J Cartwright and S R W Maxwell for Appellant V A Crawshaw KC and S M Wilson for First Respondent

L J Kearns KC for Second Respondent

Judgment:

9 July 2025

Reissued:

22 July 2025

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 9 July 2025 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.

………………………………

Registrar/Deputy Registrar

Solicitors:      McLean Law Ltd, Auckland

Haigh Lyon, Auckland Shieff Angland, Auckland

LAWSON v GOFF [2025] NZHC 1857 [9 July 2025]

ANDBARRY GOFF and X LIMITED AS TRUSTEES OF THE ALICE GOFF TRUST

Second Respondent

Table of Contents

Para No

Introduction[1]

Background[4]

The crux of Ms Lawson’s claim in the Family Court and

Mr Goff’s response[19]

The Family Court Decision[25]

The present appeal[40]

Approach to granting leave for new arguments[48]

Test on appeal[51]

Points on appeal  [54]

Alleged discovery deficiencies[56]

Onus of proof[60]

The Settlor Loan  [69]

Genesis of the Settlor Loan[70]

Mr Goff ’s acknowledged application of relationship property[74]

Parties’ initial statements[78]

Ms Lawson’s ground of appeal relating to the Settlor Loan[80]

Consideration of the Settlor Loan at trial[85]

Issue of prejudice[91]

Was the Settlor Loan relationship property?[95]

Mr Goff’s AGT Loan balances  [98]

Transfers from Mr Goff to the AGT[105]

Mr Goff Snr’s AGT loan balances  [114]

The intermingling of funds in Mr Goff Snr’s account[119]

Specific transactions[124]

Transfers totalling $380,555[126]

$39,000 loan for car[134]

Pakman Ltd[135]

Conclusion[141]

AMP Policies[142]

Savings for Mr Goff’s elder sons  [148]

Other appeal points[152]

Value of Ms Lawson’s legal practice[154]

Economic disparity[158]

Constructive trust[160]

Result and orders[163]

Introduction

[1]    Sarah Lawson and Barry Goff have been engaged in protracted and acrimonious  litigation  following  the  breakdown  of  their  marriage  in   2015.1   Ms Lawson brings  proceedings  under  the  Property  (Relationships)  Act  1976  (the PRA) against Mr Goff in his personal capacity, and also against Mr Goff and    X Ltd as trustees of the Alice Goff Trust (the AGT).

[2]    On 5 March 2024, Judge M L Rogers in the North Shore Family Court issued a decision  dividing  relationship  property  between  the  parties  (the  Decision).2  Ms Lawson appeals.  In essence, she says the Judge ought to have concluded that  Mr Goff transferred substantial amounts of relationship property to the AGT and/or to his father’s accounts and that this should be reflected in Ms Lawson receiving the bulk of relationship property and significant assets of the AGT.

[3]    On the eve of the hearing, Mr McLean for Ms Lawson filed submissions which the respondents say departed significantly from the points of appeal and submissions previously filed, and in some cases from the arguments presented in the Family Court. Further new arguments were raised during his oral submissions. Whether I should entertain these new arguments is in issue.

Background

[4]    Ms Lawson and Mr Goff were in a relationship for approximately 15 years, commencing in April 2000 and ending in 2015. There was an eight-year age gap between the two of them. Ms Lawson was, and remains, a solicitor. When the relationship began, Mr Goff was in the process of acquiring a Colonial franchise. He had earlier worked for Christchurch Casino, which he left in 1999. Mr Goff had two sons from his previous relationship (the elder sons).

[5]    Mr Goff came  to  New  Zealand  from  South  Africa  in  the  mid-1990s.  His parents and brother (Stuart) remained there. Although this is not accepted by

1      The names of the parties and other identifying particulars are anonymised to avoid identification of their children (s 11B of the Family Court Act 1980).

2      [Lawson] v [Goff] [2023] NZFC 11143 (Family Court Decision).

Ms Lawson, Mr Goff says that his parents had significant funds in South Africa and that they and Stuart were motivated to transfer what they could to New Zealand bank accounts.  Mr  Goff’s  parents  and  Stuart   had  established  bank  accounts  in   New Zealand.

[6]    From Mr Goff’s perspective, he brought to the relationship considerably more assets than Ms Lawson. The couple bought a home together in Inga Road, Milford in 2001. The property needed renovating. The parties did not start operating joint accounts until sometime after this (within a year of purchasing Inga Road from     Ms Lawson’s recollection, May 2004 from Mr Goff’s).

[7]    Mr Goff also retained separate accounts. It is not disputed that separate property was introduced into these accounts such as inheritances, trust funds, pre-relationship funds of Mr Goff’s from South Africa and funds Mr Goff claimed were savings and inheritances for his elder sons.

[8]    During their relationship, the parties jointly established the Lawson Goff Family Trust (LGFT) in October 2005 at a time when they were trading up from  Inga Road to a property in Isobel Road, Greenhithe. This property was placed into the LGFT. The trust was intended to benefit both parties, the two children they shared (born in April 2005 and August 2010), and Mr Goff’s elder sons.

[9]    From around 2006, Mr Goff operated hospitality businesses through various companies. These were subsequently sold during the relationship.

[10]   In 2011, Mr Goff invested $1 million of Goff family funds (his funds, and funds from his father and brother) with Forsyth Barr Investment Services. Mr Goff maintains that his contribution to this was from his separate property funds.

[11]   On 21 March 2014, the AGT was established. It was settled by Mr Goff’s father, John Goff (Mr Goff Snr). Mr Goff is both a trustee and a discretionary beneficiary of the AGT. Ms Lawson is not a beneficiary.

[12]   Mr Goff says that the purposes of the AGT were: to hold funds gifted to it by Mr Goff Snr, which largely came from Mr Goff’s mother; funds gifted and advanced by Stuart; and funds bequeathed to Mr Goff’s elder sons by his mother. There are also funds transferred to the AGT by Mr Goff from inheritances, and transfers from savings in the years following separation.

[13]   On 11 July 2014, Mr Goff transferred $269,065.25 of funds from his personal account to the bank account of AGT. Subsequently, the Forsyth Barr portfolio was transferred to AGT sometime in 2014, after the latter was settled. As at 31 January 2015, the Forsyth Barr Portfolio was valued at $1,405,362.00.

[14]   The relationship ended abruptly in February 2015. At that time, Mr Goff provided Ms Lawson with a financial analysis of transactions and explained various transactions to her. He said that she was aware of some of the transactions, but not all.

[15]   Ms Lawson commenced proceedings under the PRA in July 2015. The matter proceeded to trial in 2023, some eight years later. As noted by Judge Rogers, the proceeding had by then “swollen to an extraordinary volume”.3 It had been characterised by protracted and contentious discovery disputes.

[16]   John Rowe, a chartered accountant, was appointed by the Court under s 38 of the PRA to investigate and report on the assets and liabilities at the start and end of the relationship, as well as at the time the report was commissioned. He was also briefed to consider assets transferred to the AGT and investigate specific transactions deemed relevant by each party. Mr Rowe had the opportunity to receive information and make enquiries of the parties, and did so. The Family Court had directed Mr Rowe that he was not required to conduct a transactional audit of all transactions during the relationship, as sought by Ms Lawson.

[17]   As was her prerogative, Ms Lawson appointed her own expert accountant, Marnus Beylefeld. She provided Mr Beylefeld with the information on which he based his final report.  Mr Beylefeld  sought  to  conduct  a transactional  analysis. He acknowledged that, from an accounting perspective, it was “impossible to obtain

3      Family Court Decision, above n 2, at [10].

any reasonable certainty as to the completeness of transactional activities”, due to missing or incomplete bank statements for significant periods of the relationship between Ms Lawson and Mr Goff.

[18]   The reports produced very different conclusions, particularly about transactions said by Ms Lawson to involve dispositions of relationship property by Mr Goff.

The crux of Ms Lawson’s claim in the Family Court and Mr Goff’s response

[19]   As the Judge observed in her decision, Ms Lawson’s third amended application on which she proceeded to trial perpetuated an unhelpfully “scattershot” approach. The Judge expressed concern that the application did not clearly set out Ms Lawson’s position, but instead invoked virtually every single actionable provision under the PRA.4

[20]   The Judge had difficulty distilling the specific claims and relief sought by  Ms Lawson.5 However, in opening submissions, Ms Lawson described the crux of her case as being that Mr Goff had systematically disposed of significant sums of relationship  property  to  the  AGT,   either   directly   or   through   Mr Goff Snr.6 She maintained that he had tried to hide or disguise these transfers by movements through numerous bank accounts and by “fabricating a number of ‘debts’, loans and other spurious reasons to attempt to justify the transfers”.7

[21]   As noted earlier, Mr Goff had both personal and joint bank accounts during his relationship with Ms Lawson. He also managed his father’s New Zealand accounts under a power of attorney. During the marriage, he told the Court that he combined funds of his own, relationship property, and family funds to get better investment returns for everyone. This led to frequent transfers between his accounts, his father’s accounts, and joint accounts. Mr Goff kept spreadsheets to track these transfers, the allocation of funds, and the interest earned.

4 At [20].

5      At [21]–[25].

6 At [22].

7 At [22].

[22]   In addition, Mr Goff outlined in evidence certain loans to and from Mr Goff Snr and other specific transactions that he maintained did not result in a transfer of relationship property out of the relationship. However, he did acknowledge from the outset that various transfers had been made of relationship property for which he kept records, and that these would need to be recognised in the classification and division of the parties’ relationship property. He otherwise denied the allegations made by  Ms Lawson.

[23]   Ms Lawson disputed Mr Goff’s explanations of the financial transactions. She rejected the legitimacy of his practices, the detailed justifications provided, and denied that the funds remained his separate property as a result. She maintained in the Family Court that she was an innocent victim of Mr Goff’s deceit. Based on her expert accountant’s analysis, she alleged that Mr Goff had removed approximately

$2.3 million of relationship property funds with a net loss to the relationship property pool of close to $1.3 million.

[24]   Each of the parties filed over 20 affidavits over the course of the proceedings. For Mr Goff, this included responding in granular detail on issues relating to his operation of separate and joint accounts during the relationship, on transactions involving his father’s account, and on transfers to the AGT. Mr Goff also provided explanations to Mr Rowe in the course of the latter’s investigations. At trial, Mr Goff was cross-examined at length on a range of specific transactions Ms Lawson challenged.

The Family Court Decision

[25]   The Judge set out the factual and procedural background. The deficiencies of Ms Lawson’s case led the Judge to lean heavily on the “crux” of Ms Lawson’s case from her opening submissions. The Judge also characterised draft orders provided by Ms Lawson with her closing as “perhaps the clearest exposition” of her position.8 The Judge set these orders out in full.9

8 At [24].

9 At [22].

[26]   After discussing Ms Lawson’s concerns with discovery and setting out the procedural background, the Judge concluded:

[34] To the best of my knowledge none of the court’s determinations regarding discovery issues have been appealed. I am satisfied that discovery had been more than adequately addressed prior to hearing and that the applicant has been dealt with fairly in that process.

[27]   The Judge set out the principles and relevant statutory provisions under the PRA and s 182 of the Family Proceedings Act 1980. She also addressed the burden and standard of proof. I return to this later.

[28]   The Judge then summarised Mr Rowe’s appointment, his instructions and his conclusions. In his reports, Mr Rowe had not identified any unexplained diversion of relationship property into the AGT.

[29]   The Judge considered that Mr Rowe’s reports were more probative and reliable than Mr Beylefeld’s. The Judge also referred  to expert accounting evidence from  Mr Rod White, also called for Mr Goff, whose evidence she also found helpful.10 The Judge observed that the information available to Mr Beylefeld meant that his report inevitably contained a greater degree of speculation than Mr Rowe’s. Her conclusions on Mr Beylefeld’s evidence are set out below:

[76] As addressed at length in earlier decisions, the Court has sought to avoid a transactional analysis of the sort undertaken by Mr Beylefeld for very similar reasons to those expressed by Mr White; material relied upon is incomplete, some claims lack any evidential foundation, and the passage of time has had a significant impact on recall and records.

[30]   The Judge recorded that her views on the credibility of the evidence provided by Mr Goff underpinned her acceptance of Mr Rowe’s report.11 She observed:

[81] Key to my acceptance of Mr Rowe’s report is an assessment of the evidence from the applicant and first respondent which informed that report. In preferring Mr Rowe’s report to that of Mr Beylefield, it is implied if not inherent that I have found credible and consistent [Mr Goff’s] explanations as to his dealings with relationship property and the various transactions which have been subject to such close scrutiny.

10     At [69]–[72]

11 At [81].

[31]   She described Mr Goff’s evidence as “notably consistent”, albeit that he had acknowledged in appropriate instances that with the passage of time his recollection may have been inaccurate, and that there had been minor calculation errors.12

[32]   The Judge found Mr Goff had maintained a “remarkably balanced attitude” despite the acrimony and lengthiness of the proceedings.13 In contrast, she considered Ms Lawson to have developed such a negative view of Mr Goff that it had distorted her recollection of events to the “point of unreliability”.14 The Judge also noted inconsistencies between Ms Lawson’s oral and written evidence.

[33]   The Judge then examined Ms Lawson’s claims in substance. She structured her analysis in line with Ms Lawson’s draft orders, which specified the sections of the PRA under which relief was claimed. My summary of her findings follows this structure.

[34]   First, the Judge considered that the circumstances did not give rise to a successful claim under s 15 for economic disparity.

[35]   As to Ms Lawson’s claim that funds in personal accounts under Mr Goff’s name should be deemed relationship property under ss 9A and 10(2) of the PRA, the Judge accepted Mr Goff’s explanation that the funds were separate property. These included savings he said he held on trust for his sons and an inheritance/trust funds Mr Goff had received. The Judge observed that the couple’s financial arrangements had been characterised by a degree of informality and that Mr Goff had pooled family funds for investment purposes. Despite this, the Judge concluded that Mr Goff had not intermingled the funds to the extent that they could not be regarded as relationship property, and that he had not acted to divest the relationship property pool.

[36]   Ms Lawson also sought relief under ss 44, 44C and 44F. These sections deal with dispositions made with the intent of defeating a party’s relationship property

12 At [83].

13 At [83].

14 At [91].

claim.15 Ms Lawson’s claims related to payments made by Mr Goff to, among other entities, Mr Goff Snr, the AGT, and a company called Pakman Ltd (later renamed Ince Ltd).16 Mr Goff’s evidence had been that an investment in the  shares  of Pakman Ltd was primarily on behalf of his father, with a smaller balance being an investment from his separate property.

[37]   The Judge found that there was no evidential basis to the claims to show that Mr Goff had intended to defeat Ms Lawson’s rights by making any of the impugned transactions. In respect of payments made to Mr Goff’s father’s bank account, the Judge considered that they did not qualify as dispositions under s 44, “relating as they do to the bank account of a third person who is not and never has been a party to the proceedings”.17

[38]   The Judge also rejected Ms Lawson’s claim to a constructive trust over the assets of the AGT.

[39]   Another aspect of Ms Lawson’s case involved what the parties referred to as the Settlor Loan. This relates to a deed of acknowledgement of debt signed by the LGFT trustees on or around 17 October 2015, when the LGFT was established. The deed recorded a loan of $310,00018 made by Mr Goff to the LGFT. The Judge rejected Ms Lawson’s submission that the deed was “void and unenforceable” under s 21F of the PRA.19 She held that it was not a contracting out agreement to which s 21F applied. At the end of the judgment, without further analysis, the Judge classified the Settlor Loan as the separate property of Mr Goff. It was excluded from the property pool.

15     Section 44C relates to dispositions made to trusts and s 44F relates to dispositions made to companies.

16     Pakman Ltd was a packaging and subsequently a consulting business owned wholly by Mr Goff. It provided consulting services to businesses owned jointly by Ms Lawson and Mr Goff.

17 At [118].

18     The figure of $310,000 and $310,300 both appear to have been used to describe the Settlor Loan over the course of proceedings. The deed of acknowledgment records the Settlor Loan as being

$310,000. The Decision reflects that the settlor loan account is $310,300, which is how I address the Settlor Loan in my end orders on appeal.

19     Section 21F concerns the voiding of contracting out agreements.

The present appeal

[40]   Ms Lawson was initially self-represented in the appeal. She filed a notice of appeal that identified 56 grounds of appeal. Robinson J directed that Ms Lawson file points of appeal that more clearly stated the issues. She failed to comply with this direction. Campbell J subsequently made unless orders directing a substitute timetable for filing points on appeal and submissions. A document entitled “Points of Appeal” (the July Points of Appeal) was then filed in accordance with these orders on 18 July 2024 by McLean Law, now instructed to act for Ms Lawson.

[41]   Mr McLean suggested that Ms Lawson can still rely on her initial notice of appeal. I reject that. The objective of Robinson J’s direction requiring particularised points on appeal was to confine the hearing. The initial notice has been replaced with the July Points of Appeal.

[42]   On 9 August 2024, Ms Lawson filed an interlocutory application for discovery, for leave to adduce further evidence on appeal and for the adjournment of her appeal fixture. Blanchard J dismissed these applications on 25 September 2024.

[43]   McLean Law filed submissions in support of the appeal on 5 August 2024 (the August Submissions). These submissions expanded on the arguments made in the July Points on Appeal. Mr Goff and the AGT responded in their submissions filed on 15 August 2024.

[44]   On 25 October 2024, the last working day before the hearing, the appellant filed an 11-page document titled “Summary of Oral Presentation of Appellant” (Summary of Oral Presentation). At the start of the hearing, Mr McLean also attempted to file a further 35-page submission which he considered would assist the Court (the October Submissions). I declined leave to file the October Submissions.

[45]   The respondents contend that arguments in the Summary of Oral Presentation and arguments made orally on the appeal differed significantly from those advanced in the Family Court, the July Points on Appeal and the August submissions. I granted

the respondents leave to file submissions in reply to the new arguments raised.20 Reflecting the indulgence granted to Ms Lawson, I did not grant her a right of reply. The respondents’ reply submissions also addressed me on their primary position, which was that I should not permit the new arguments to be advanced at all.

[46]   The Summary of Oral Presentation set out, in table form, the errors said to be made by the Judge. I summarise those below. I will come back to which arguments the respondents say are new when I address them:

(a)The Judge failed to consider whether the Settlor Loan of approximately

$310,000 was relationship property. Mr McLean says that the Judge should have classified it as such, with $155,150  being allocated to  Ms Lawson and $155,150 to Mr Goff.

(b)The Judge failed to consider and classify as relationship property loan balances for advances from Mr Goff to the AGT for the financial years ending 31 March 2015 ($471,599) and 31 March 2016 (a further

$448,284).

(c)The Judge failed to consider and classify as relationship property loan balances for advances from Mr Goff Snr to AGT for the financial years ending 31 March 2015 ($733,556) and 31 March 2016 (a further

$194,850).

(d)The Judge failed to make a finding on whether a sum of $385,000 paid by Mr Goff to Mr Goff Snr’s accounts was repayment of a loan.

(e)The above sum and other transfers to Mr Goff Snr’s account are of relationship property and/or converted all of the funds in Mr Goff’s Snr’s  account  to  relationship  property  due   to   “intermingling.” Ms Lawson says that the effect is that when these funds and any accumulated increase were lent ostensibly by Mr Goff Snr to AGT, the

20     My orders and my reasons for  refusing  leave  to  file  the  written  submission  as  sought  by Mr McLean are recorded more fully in my minute of 1 November 2024.

loan or the funds they represent in AGT all became relationship property.

(f)Ms Lawson’s AMP policies, which are already allocated as her relationship property, should be valued at $27,515, not $50,000.

(g)Mr Goff needs to account to the relationship property pool for $46,915, being a sum he set aside from relationship property for his elder sons.

(h)Bartercard and Amex points totalling $39,066 have wrongly been identified as “received” by Ms Lawson when that is not the case.    The Family Court orders simply provided for Ms Lawson to retain these points as her separate property. The Judge was not suggesting she currently held them. I say no more about this, as it turned out to be a non-issue. Mr Goff acknowledged that the points are his possession, so a transfer is required.

[47]   Ms Lawson’s key criticisms underlying several of the above points is an alleged failure by the Judge to require Mr Goff to discharge an onus establishing that property was his separate property, failure by the Judge to make specific findings on factual issues, and an allegation that the Judge was wrong to conclude that discovery did not need to be reopened.

Approach to granting leave for new arguments

[48]   The Court has the discretion to decide whether to allow the raising of a new point on appeal that was not advanced at trial.21 Appeal courts have permitted new points to be taken on points of law that were fully argued before the appeal court,22 and where the appeal court was satisfied that the evidence in the court below was sufficient for it to decide factual issues raised by the new argument.23 McMullin J in Savill v Chase Holdings (Wellington) Ltd considered that points could be raised on

21     McCollum v Thompson [2017] NZCA 269, [2017] NZAR 1106 at [52].

22     Motor Vehicle Dealers Institute Inc v UDC Finance (1991) Ltd [1994] 1 NZLR 659 (CA).

23     Duff v Commissioner of Inland Revenue [1982] 2 NZLR 710.

appeal if the pleadings and evidence at trial left such arguments “open to be taken”.24 To that end, the Court of Appeal in McCollum v Thompson commented that:25

… an appellate court, just like a trial court, must ensure in applying the relevant rules that the conduct of proceedings is procedurally fair. It is not fair to allow a new tack if there is a real possibility that the party affected by the change of position will be materially disadvantaged.

The unfairness stems from the fact that if the party opposing the raising of the new point would, on an objective assessment, have fairly wished to run the case differently in the trial court had the point been raised, the appeal court cannot provide that opportunity without ordering a new trial. To put a party to the delay and expense of a new trial because something that could have been raised in the trial court was not raised would be unjust. Indeed, it would run against the principle that litigation should be final, and it would bring the administration of justice into disrepute.

[49]   Even where an issue was advanced at trial but not mentioned in the notice of appeal, leave is required to amend the notice of appeal.26 Similar to the test for allowing new arguments on appeal, leave is more likely to be granted where there is no prejudice to the other party, and where amendments have the effect of further particularising already stated grounds rather than adding new matters of substance.27

[50]   Ms Lawson’s conduct of this appeal has been unsatisfactory, to say the least. However, as I will discuss by reference to the individual points of appeal, I grant leave to Ms Lawson to advance most of the new arguments. Much of the prejudice has been mitigated by the granting of leave to file reply submissions. The additional steps the respondents have needed to take in reply will have cost consequences for Ms Lawson, as will her conduct of this appeal.28

24 Savill v Chase Holdings (Wellington) Ltd [1989] 1 NZLR 257 (CA) at 307. Nevertheless, in that case, the Court of Appeal did not allow the appellants to introduce new arguments on appeal, because there was a real possibility that the respondents would have shaped their case at trial to deal with the specific point raised.

25 At [53]–[54].

26 Notices of appeal may be amended with the leave of the Court: see Comalco New Zealand Ltd v Television New Zealand Ltd (1996) 10 PRNZ 573.

27 At [578]–[579].

28 For example, see Pioneer Insurance Co Ltd v White Heron Motor Lodge Ltd [2008] NZCA 450, (2008) 19 PRNZ 286 (CA) at [57].

Test on appeal

[51]   Under s 39(2) of the PRA, a party may appeal a decision of the Family Court to the High Court.  The  High Court Rules and  ss 126–130 of the  District Court   Act 2016 apply with all necessary modifications, as if the appeal were under s 124 of the District Court Act.

[52]   The appeal is by way of rehearing.29 The Court must be persuaded that the Family Court Decision is wrong.30 However, no deference is required beyond the customary caution appropriate when the trial court has had the advantage of seeing witnesses.31

[53]   This Court may make any decision it thinks should have been made.32 It may also direct the Family Court to rehear the proceeding,33 consider or determine any matters it thinks fit,34 or enter judgment.35

Points on appeal

[54]   I now turn to address the points on appeal. I consider the issue of prejudice on new arguments as I do so. I will address the issues under the following headings:

(a)Alleged discovery deficiencies;

(b)Onus of proof;

(c)The Settlor Loan;

(d)Mr Goff’s AGT loan balances;

29 District Court Act 2016, s 127.

30 GFM v JAM [2013] NZCA 660, [2014] NZFLR 418 at [17], applying Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] to appeals from the Family Court to the High Court regarding relationship property disputes.

31 GFM v JAM, above n 30, at [17], citing Austin, Nichols & Co Inc v Stichting Lodestar, above n 30, at [13].

32 District Court Act, s 128(1)(a).

33 Section 128(1)(b)(i).

34 Section 128(1)(b)(ii).

35 Section 128(1)(b)(iii).

(e)Mr Goff Snr’s loan balances;

(f)AMP policies;

(g)Savings for Mr Goff’s elder sons;

(h)Other appeal points, such as the value of Ms Lawson’s legal practice, economic disparity and Ms Lawson’s claim for constructive trust.

[55]   Discussion of the AGT loan balances in (d) and (e) incorporates conclusions on arguments Ms Lawson ran under ss 10 and 9A of the PRA relating to intermingling, on disposition of property under ss 44, 44C and 44F, and on factual errors alleged about a range of transactions.

Alleged discovery deficiencies

[56]   Ms Lawson claims on appeal that the Judge erred in her conclusions that discovery had been “more than adequately addressed prior to the hearing”36 and that the first respondent had provided adequate discovery. She criticises Mr Goff’s approach to and compliance with discovery in respect of certain bank account statements.37 She also says he failed to disclose in his initial affidavit of assets and liabilities a joint bank account with Mr Goff Snr.38

[57]   There is no justification for remitting the issue back to the Family Court. Nor is there a basis for upsetting the Family Court Decision because of how the trial Judge or those case-managing the matter have dealt with discovery.

[58]   Ms Lawson specifically refers to the absence of three categories of bank account statements. It is correct that there are certain bank statements that were no longer available. There are also bank statements of Mr Goff’s parents prior to the establishment of Mr Goff Snr’s account that were never directed to be discovered.

36     Family Court Decision, above n 2, at [34].

37     These relate to an ASB account in Mr Goff’s sole name, and an ASB account of Mr Goff Snr over which he held power of attorney.

38     I have referred in this paragraph to the specific accounts identified in the July Points of Appeal. The August submissions were significantly broader.

[59]   However, Mr McLean acknowledged the respondent had complied with the discovery orders, although he argued that the  compliance  was  “technical”  only. The necessary disclosure relevant and proportionate to Ms Lawson’s claims was before the Family Court. As Ms Crawshaw submitted, Ms Lawson’s insistence that a full transactional audit of the relationship be conducted was repeatedly, and rightly, rejected by the Family Court.

Onus of proof

[60]   The Judge stated the law on the onus of proof in relationship property litigation in a way that I consider to be exemplary. I can do no better than setting out her summary:

[44]      Proceedings in the Family Court dealing with the division of relationship property straddle both social concerns and more traditional civil law concerns. The Act’s express purposes set out in s 1M include recognition of the equal contribution of both parties to a marriage or qualifying relationship and requires the court when dividing the relationship property to do “justice” as between the parties, while taking into account the interests of any children.

[45]      The tensions that arise as a consequence of this dual focus were acknowledged by the Court of Appeal in M v B (a relationship property case concerning economic disparity) when it observed that “notions of onus of proof fit uncomfortably within this legislative regime”. The Court commented further at [50] that:

The legislative framework requires that the Judge be satisfied of a particular state of affairs based on all of the evidence before the Court. Rules 392 and 398 of the Family Courts Rules 2002 require that each of the parties to a proceeding swear affidavits outlining the background to the relationship and the application made, and disclosing their assets and liabilities. These rules have the dual purpose of advising the Court and the parties of the issues raised and providing evidence on those issues. Onus will seldom be a relevant consideration.

[46]      This ‘discomfort’ around the onus  of  proof  has  not  led  the Family Court (or appellate courts) to abandon the expectation that claims in the Family Court are proven to the usual civil evidential standard – on the balance of probabilities. It has however meant that a more inquisitorial and less adversarial approach to the evidence has been encouraged, rather than a purist approach to who has the ‘burden’ of proving a particular fact.

[47]      While concerned to discharge its social obligations as reflected in the legislation, the Family Court is a court of law and in order for claims to succeed there must be an evidential basis for those claims. Further, the

evidence must be sufficient to satisfy the civil standard that the evidence establishes a matter “on the balance of probabilities”.

[48]      In Re H & R (child sexual abuse: standard of proof) the House of Lords helpfully reiterated that “the balance of probability standard means that a Court is satisfied an event occurred if the Court considers that, on the evidence, the occurrence of the event was more likely than not”. That same decision confirmed the long held approach that the more serious the allegations, the more careful the Court should be in finding them proven.

[49]In New Zealand the leading authority on this point was to be found in

T v M in which Justice Woodhouse commented:

In my view those various observations are all aimed at explaining the simple need to be careful in estimating whether or not the inference to be drawn is in truth probable rather than merely possible. It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it.

…

I would simply add that the exercise of that kind of caution or care must not be taken to such a stage that the level of satisfaction required by a Judge on some particular occasion really amounts to introducing a new and more stringent standard of proof than the balance of probabilities actually requires.

[50]      I read these decisions as support for the view that the court should not be unduly concerned about the question of onus, but it must be satisfied that in respect of each claim, the evidence shows that the events necessary to sustain that claim are more likely to have happened than not.

(footnotes omitted)

(emphasis in original)

[61]   I understood Mr McLean to contend that by this concluding paragraph, the Judge did not — as he says she should have done — place any onus on Mr Goff to establish property was his separate property. He also says that in the course of her judgment, the Judge did not require Mr Goff to discharge this onus. I will address the individual issues as I come to them. For present purposes, I make general comments on Ms Lawson’s position on these evidential matters.

[62]   First, I accept Ms Crawshaw’s submission that the question of “onus” is more nuanced that bluntly characterising Mr Goff as having an onus to establish that property is his separate property. As the Court of Appeal made clear in M v B,

questions of onus of proof depend on the particular issue or claim before the Court.39 The Court needs to identify these issues first.

[63]   Second, Mr McLean came close to suggesting that it was not open for the Judge to resolve issues of contested  fact  solely  based  on  the  evidence  of  a  witness.  He criticised the Judge for accepting Mr Goff’s evidence in some instances without corroborating documents. In long-term relationships, there will commonly be document gaps. To be accepted, oral evidence is not required to be buttressed by documentary support.

[64]   Third, Mr McLean suggests that the Judge simply drew a conclusion that    Mr Goff was a more credible witness than Ms Lawson, rather than making specific findings on the evidence. He says that the Judge has failed to make necessary findings on issues of fact as a result, and that Mr Goff has failed to discharge an onus to establish property as his separate property.

[65]   As discussed above, the Judge considered Mr Goff’s explanations as to the transactions under scrutiny to be credible and consistent.40 Although this was in a section of the decision on credibility and reliability, it is a positive finding on the transactions and dealings Ms Lawson raises. There are also other positive findings in the Decision on specific aspects which I will refer to below. There is some merit in Mr McLean’s criticism that the Judge ought to have set out her findings in all instances. However, the fact that the Judge did not do so is partly a result of the kitchen sink Ms Lawson threw at her, and the full-scale attack on Mr Goff’s credibility at the core of Ms Lawson’s case.41

[66]   It is evident from a full reading of the Family Court Decision and of the evidence in this case that the Judge accepted Mr Goff’s account on the various transactions outlined in closing arguments and as to the legitimacy of the pooling practice he undertook for investment purposes. Ultimately, I consider the Judge has found any requisite onus established by accepting Mr Goff’s account.

39     M v B [2006] 3 NZLR 660 at [38]–[50].

40 At [81].

41 See [20] and [23] above.

[67]   Fourth, the Judge cannot be criticised for placing emphasis on the respective credibility of the parties in concluding that Mr Goff’s analysis of transactions should be accepted. Ms Lawson was asserting that Mr Goff was being dishonest and had been deceitful on a systematic scale. Ms Lawson emphasises in this Court that findings of deceit or dishonesty are not critical or necessary to findings on classification of property, intermingling, or claims of disposition of relationship property to third parties. That is true. However, given the way Ms Lawson ran her case, the Judge’s conclusion that Mr Goff was a credible witness and the binary acceptance of his evidence was an unsurprising response.

[68]   Finally, in considering the issues raised on the appeal, I have read the affidavits and notes of evidence. Having done so, I have not been persuaded that I should interfere with the Judge’s conclusions other than in isolated respects that I will identify.

The Settlor Loan

[69]   Ms Crawshaw says, with justification, that the Judge’s classification of the Settlor Loan as separate property is an issue only raised in Ms Lawson’s closing and should not be permitted to be advanced on appeal. However, it is a matter on which the appeal succeeds. That combination and the need to refer in detail to the evidence explain the length of this section.

Genesis of the Settlor Loan

[70]   As outlined above, the parties bought Inga Road together in 2001. It was a “do-up”, which they renovated and later sold in October 2005 for $700,000. At this time, they set up the LGFT to acquire their next family home at Isobel Road, which cost $1.29 million. The loan for this new home was taken out in their joint names.

[71]   Ms Lawson prepared two deeds of acknowledgement of debt reflecting the total opening value of the Isobel Road property of $1.29 million in the LGFT accounts. By these deeds, the LGFT acknowledged a joint debt of $980,000 to the parties, and a separate debt to Mr Goff of $310,000.

[72]   The latter debt is what the parties referred to as the Settlor Loan. Mr Goff stated that the purpose of the loan was to record the additional funds he had brought into the relationship, and protect those funds for the benefit of his elder sons.

[73]   Until 2019, when the LGFT’s accountant sent Mr Rowe the two signed deeds of acknowledgement of debt as part of his investigations, Mr Goff had been under the misapprehension that Ms Lawson had not signed the deeds. That is because the parties disagreed over what figure should be reflected as the differential between the property each brought at the start of the relationship. Ms Lawson thought it should be considerably less than $310,000, whereas Mr Goff believed that $310,000 was conservative.

Mr Goff ’s acknowledged application of relationship property

[74]   It is convenient here to flag a collateral issue connected to the Settlor Loan, which is relevant to another aspect of the appeal.

[75]   Because he thought the deed had not been signed, Mr Goff took matters into his own hands. He says that with no further progress on the deed, he started “repaying” the Settlor Loan from other relationship property by way of transfers to his father’s account and his separate account between 2009 and 2010. He considered that it was important for the separate loan to be protected in the interests of his elder sons, given that he thought no deed had been signed and Ms Lawson had refused to enter into a contracting out agreement.

[76]   Initially, Mr Goff calculated the full sum transferred to Mr Goff Snr’s account for this purpose to be $179,989, but by the time of the trial he had identified errors he had made in this sum. The figure reflected in the Judgment is $151,431.

[77]   At the outset of their split, Mr Goff advised Ms Lawson that he had been making these transfers and identified other relationship property transactions. These sums are recognised in the Family Court Decision allocations to Mr Goff for which he needs to account to the property pool. Ms Lawson says the mixing of these funds in Mr Goff Snr’s account turns other assets in that account into relationship property. That is an issue I return to later.

Parties’ initial statements

[78]   At the time of her first narrative affidavit in July 2015, Ms Lawson stated she was unclear about how the funds for the purchase of Isobel Road were transferred to the trust—or on the parties’ debt position—noting she intended to seek further information. Reflecting this uncertainty, she did not list any loans to LGFT in her July 2015 statement of assets and liabilities. In fact, she had been sent the two deeds from the LGFT accountant as recently as May 2015, a credibility issue on which she was cross-examined at trial.42

[79]In his statement of assets and liabilities, Mr Goff listed the loan to LGFT of

$310,000 as property acquired from separate property. In the accompanying narrative affidavit dated 2 November 2015, Mr Goff introduced the Settlor Loan (which he then understood to be undocumented) as “my separate property, that loan having been made from property I held in my sole name prior to our relationship commencing”.

Ms Lawson’s ground of appeal relating to the Settlor Loan

[80]   The Settlor Loan is an asset Mr Goff acquired during the relationship. Under the relevant provisions of the PRA,43 it is relationship property, unless it was acquired from Mr Goff’s separate property or if the parties agreed to change the statutory classification under a contracting out agreement.44

[81]   The Judge found that the deed was not void or unenforceable under s 21F. Sections 21 and 21F concern agreements contracting out of provisions of the PRA, which need to meet prescribed requirements to be effective.

[82]   There was no discussion in the Family Court Decision of how the Settlor Loan was to be classified. The Judge simply made orders at the end of the Decision that Mr Goff was to retain the Settlor Loan as his separate property. The orders provided that the loan was to be repaid to Mr Goff out of the net assets of the LGFT under s 182

42    In her evidence at trial, Ms Lawson also questioned the authenticity of her signature on the deed  of acknowledgement of debt, and its authenticity generally. This was one of the matters on which the Judge made adverse comment about Ms Lawson’s credibility.

43 Property (Relationships) Act 1976, ss 8(e), 8(ee) and 9(2).

44 Lyttle v Casey [2014] NZHC 3142.

of the Family Proceedings Act 1980. The classification of the loan as separate property outside the property pool reflected how the loan was treated in an  appendix to      Mr Rowe’s final report attached to the Family Court Decision.

[83]   Mr McLean submits that the Judge omitted to classify the Settlor Loan properly, having focussed only on the contracting out issue. Further, he says that the Judge ought to have classified the Settlor Loan as relationship property, being an asset acquired during the relationship. He also submits that in any event the separate property which it purported to acknowledge had previously been applied to the relationship, so the Settlor Loan cannot be said to have been acquired out of separate property. Ms Crawshaw contends that the classification of the asset was not a point taken in the July Points on Appeal  or in  the August  Submissions.  She says that  Ms Lawson should not be able to raise it now, and that Mr Goff is unduly prejudiced by this.

[84]    In my view, the question of whether to allow this argument on appeal revolves around the degree of prejudice to the respondents if I find that the classification of the Settlor Loan was not properly advanced at trial. The prejudice that arises from allowing a late amendment of the notice of appeal is largely mitigated by the filing of reply submissions by the respondents.

Consideration of the Settlor Loan at trial

[85]   In opening submissions, Ms Lawson stated that her position was that Mr Goff had not entered the relationship with separate property funds totalling $310,000 and that there was no proof that these funds had ever been provided.

[86]   At trial, Ms Lawson’s counsel cross-examined Mr Goff extensively on a breakdown he had provided Mr Rowe of assets he had at the start of the relationship. Mr Goff had valued those assets at $385,000, relative to the $70,000–75,000 he acknowledged Ms Lawson had brought to the relationship, with the difference being

$310,000. Mr Goff’s assets comprised a car worth $15,000, $5,000 in cash, a Colonial franchise business worth $220,400, the $110,000 in net equity in an investment property he held in Christchurch, and $35,000 in shares.

[87]   Mr Goff’s explanation was that he held the above property when the relationship commenced, and that he had contributed the value of it to the relationship. For instance, Mr Goff advised under cross-examination that the proceeds of around

$31,000 from sale of the shares had been applied to the cost of renovating Inga Road and reducing the joint mortgage on the property. He also said that his Christchurch property was used as security for the purchase of Inga Road and that the car became the family car.

[88]   The cross-examination of Mr Goff sought to establish several propositions: that the assets in question were worth less than Mr Goff had estimated; that they no longer existed at commencement of the relationship; or that they were not applied to the relationship.  All three lines of questioning sought to undermine the legitimacy of the

$310,000 Settlor Loan figure as representing the extra assets Mr Goff brought to the relationship.    The  cross-examination  also  attempted  to  establish  that  no  sum of

$310,000 was ever applied by Mr Goff to the LGFT to justify a debt in his favour. However, none of the propositions put to Mr Goff directly challenged the classification of the Settlor Loan. Rather, they concerned the existence, value, and application of the assets in question.

[89]   Mr Goff’s evidence in cross-examination was that a “huge amount” of money was applied to the renovation of the Inga Road family home. He described the

$310,000 as representing a “myriad things” that he had “injected into the relationship “one way or another”.

[90]   Whether the deed of acknowledgement of debt was a void contracting out agreement under s 21F arose only in Ms Lawson’s closing submissions. However, Ms Lawson’s closing submissions also made clear that she asserted that the Settlor Loan was not acquired out of separate property.45 Counsel for Ms Lawson asserted that separate property that Mr Goff held at commencement of the relationship had since been applied to the relationship property pool. Ms Crawshaw’s response in her closing was that it was never Mr Goff’s case that the deed was a contracting out

45     This proposition was also implicit in Ms Lawson’s argument that the deed of acknowledgement  of debt was void. This argument only made sense if the deed to be “voided” had changed the status of the property from relationship property to separate property.

arrangement. Rather, the issue of the existence and classification of the Settlor Loan was a question of fact for the Judge.46

Issue of prejudice

[91]   Based on the above, I accept Ms Crawshaw’s submission that the classification of the debt was not squarely challenged until Ms Lawson’s closing submissions were filed. Ms Crawshaw is also correct that the issue of whether the Settlor Loan was acquired from separate property was not directly put to Mr Goff.

[92]   However, I have concluded that Mr Goff’s evidence on the Settlor Loan compels the conclusion that it is not separate property. In my view, it is plain that he viewed the “separate” nature of the loan in terms of the contribution he had made from the additional assets he had brought into the relationship. Indeed, Mr Goff’s evidence effectively conceded that the Settlor Loan never actually represented an advance to the LGFT. Rather, the separate property he introduced to the relationship had been used as a family chattel (the car), applied with his consent to the acquisition or improvement of Inga Road, or otherwise “injected” into the relationship. Therefore, it had either become relationship property47 or no longer existed when the Settlor Loan was conceived. Simply put, the effect of Mr Goff’s own evidence is that the Settlor Loan is relationship property.

[93]   I therefore do not consider it is unfair for the classification of the Settlor Loan to be advanced on appeal. If Mr Goff were to give evidence now on the classification of the Settlor Loan, he could not assert that it was drawn from separate property without directly contradicting the evidence he gave at trial or the responses he gave to Mr Rowe’s inquiries. Accordingly, I allow the argument to be run.

[94]   Ms Crawshaw also observed that Mr Rowe was not cross-examined on his analysis that the Settlor Loan had its genesis in Mr Goff’s separate property. However, Mr Rowe’s analysis was directed at what assets there were at the commencement of

46 In reply to closings for Ms Lawson, Ms Crawshaw also suggested that Ms Lawson appeared to acknowledge that between $100,000 and $245,000 was Mr Goff’s separate property. That was not a fair reflection of Ms Lawson’s submission, which only conceded that Mr Goff may have introduced that level of separate property at commencement.

47 Property (Relationships) Act, ss 8(1)(a) and 9A(3).

the relationship and the legitimacy of the figure adopted, rather than the classification of the loan.48

Was the Settlor Loan relationship property?

[95]   As is evident from my findings above, the Settlor Loan is relationship property and the Judge was in error in failing to recognise this. The very concept of the Settlor Loan is inconsistent with it being separate property. Rather, it reflected Mr Goff’s desire to have the additional property he brought into the relationship recognised in some way. Mr Goff’s responses to Mr Rowe and his evidence under cross-examination, together with the nature of the assets, demonstrates that he accepts as a matter of fact that the property was applied to the relationship. Again, there was never any loan that was advanced to the LGFT out of Mr Goff’s separate property.

[96]   Ms Lawson took the Judge down a tangent on whether the deed was an unenforceable contracting out agreement. Plainly, it did not purport to be such an agreement and did not meet the prerequisites. However, the central point is that a valid contracting out agreement is the only means by which the parties could give efficacy to an intention to recognise what each had brought to the relationship, as Mr Goff sought. This was the argument counsel for Ms Lawson awkwardly made in closing by submitting that the deed should be declared void under s 21F, when that was not an argument that had ever been advanced by the respondents.

[97]   Mr McLean’s submissions on the Settlor Loan were grounded on the Judge’s failure to make a factual finding and on the issue of onus. My conclusion is simply that the Judge was wrong to declare that the Settlor Loan was Mr Goff’s separate property. This should have been classified as relationship property.

Mr Goff’s AGT Loan balances

[98]   I referred earlier to Mr Beylefield’s report. In one section, Mr Beylefield extracted the various beneficiary loan accounts with AGT from its opening financial

48 As recorded in the Appendix 1 to Mr Rowe’s 31 March 2020 report, Ms Lawson had asserted to  him that the property each party had brought into the relationship had lost any separate property status. Mr Rowe’s response was that this was a matter for the Court.

statements in 2015 through  to  the  most  recent  financial  statements  in  2018.  This showed Mr Goff’s current account as having loaned the AGT $471,599 as at   31 March 2015. For the financial year ending 31 March 2016, this loan had increased by $448,284 to $919,883.

[99]   Mr McLean seized on these figures in  the Summary of Oral  Presentation.   In that document, he argues that the Judge was wrong not to make a finding that the loans recorded in 2015 and 2016 were relationship property. Mr McLean says that the loan to AGT is relationship property as it is an asset Mr Goff must have acquired during the relationship, which broke down at the end of March 2015, and because the 2015 financial year was the first of the AGT’s operation.49 He also says the increase in the loan balance in the 2016 financial year (after the parties had separated) must be derived from relationship property. He contends that Mr Goff would not have been in a position at this time to earn sufficient income on his own to make a further advance of this level to the AGT. Accordingly, Mr McLean says the Judge ought to have found they were relationship property because Mr Goff had not discharged the onus on him to show that they were separate property.

[100]   Arguments based on these figures from the financial accounts had not previously featured in the points of appeal nor in submissions on appeal. They had not been raised in opening or closing submissions at trial. Mr Goff was not cross-examined on the make-up of the balances in the AGT accounts. The Judge did not consider the balances because she was not asked to do so.

[101]   In those circumstances, it is unduly prejudicial to Mr Goff for Ms Lawson to now rely on these balances to support the proposition she advances.50 Leave to advance this new assertion on appeal is declined.

[102]   At any rate, the argument lacks merit in substance. Turning back to Mr Goff’s opening loan balances in the AGT financial statements, while these were not

49 Property (Relationships) Act, s 8(1)(e).

50 The level of debt recorded in the AGT’s financial statements as owing to Mr Goff, his father, and brother in the first accounts of the AGT may well partly reflect the opening value of the Forsyth Barr portfolio when it was transferred to the AGT.

interrogated directly, the Judge nonetheless accepted Mr Rowe’s reports. The reports directly addressed the issue of the source of funds transferred to the AGT.

[103]   In his initial report dated 4 December 2019, Mr Rowe stated that he had not identified any unexplained diversion of relationship property into the AGT. He did, however, note that he could not be certain of this conclusion without access to the AGT’s financial records. In his supplementary report dated 31 March 2020, Mr Rowe confirmed that he had reviewed the AGT’s financial statements from 2014 to 2019, obtained statements from the Trust’s chartered accountant, and examined the trust’s balance sheet. He concluded that there were no assets held by the AGT that had not already been identified in his earlier report.

[104]   While Mr Rowe acknowledged that he had not undertaken a full transactional analysis, he was satisfied that the AGT had not served as a repository for unknown relationship assets. Mr Rowe recorded that he had made various information requests from the parties and received comprehensive replies from Mr Goff. In short, there was sufficient evidence before the Judge for her not to classify the loan accounts as relationship property.

Transfers from Mr Goff to the AGT

[105]   However, under the rubric of these loan advances, Ms Lawson challenges the Judge’s findings on various transactions by Mr Goff through his personal accounts. This largely relates to a sum of $269,065 that Mr Goff transferred from his personal account to the AGT not long after the AGT was established. These challenges were raised in the July Notice of Appeal under ss 9A and 10 of the PRA. I address these because they are not new issues on appeal.

[106]   Ms Lawson accepts that Mr Goff’s separate accounts contained a range of separate property. This includes a $30,452.70 inheritance from a Canadian aunt in 2012, at least $150,812 in funds beneficially received from the Rogers Will Trust, over

$30,000 in accumulated interest, over $5,000 in accumulated dividends, $64,735 in South African funds dating to 1994, $56,465 in proceeds from Mr Goff’s Sovereign investment, and $137,976 in property Mr Goff said were savings and inheritances for his elder sons.

[107]   The gist of Ms Lawson’s claim is that transfers of relationship property to and from Mr Goff’s personal accounts that also contained his separate property transformed the latter into relationship property. There are also allegations that individual transactions were not assessed or incorrectly addressed by the Judge. Transfers from various company accounts to the AGT are also challenged.

[108]   Mr McLean claims the funds have become relationship property through “intermingling”. This is a term used only in s 10 of the PRA. It provides that property acquired by succession, survivorship, as a beneficiary under a trust or by gift is not relationship property unless, with the express or implied consent of the spouse or partner who received it, the property or the proceeds of any disposition of it have been so “intermingled” with other relationship property that it is unreasonable or impracticable to regard that property or those proceeds as separate property.

[109]   As noted above, inherited funds were held in Mr Goff’s personal accounts. These accounts also had categories of separate property not covered under s 10. As I understand, they also include third party property, such as his sons’ inheritances and/or his father’s funds. Section 10 does not strictly apply to mixing of those funds in bank accounts. The issue of when separate property becomes relationship property is addressed by s 9A. There is an issue to what extent the concept of “intermingling” in s 10 applies by analogy.

[110] I do not need to squarely address whether the s 10 concept of “intermingling” applies by analogy to the blending of relationship property and separate property in a bank account. It is clear that when separate property such as that described at [105] above is paid into a blended fund, it does not automatically result in the loss of identity as separate property.51 As I discuss further below, I also do not consider a third party’s funds can become “relationship property” by a process of intermingling under the PRA, as Ms Lawson also appears to assert.

51 Allan v Allan (1990) 7 FRNZ 102 (HC) at 107–108; Gough v Gough (1996) 14 FRNZ 660 at 670; and TN v AK [2019] NZHC 2466 at [102]. These cases discuss the conversion of classification of property under s 8(1)(d), which deals with property the parties had at the commencement of their relationship that was acquired in contemplation of the relationship and was intended for the common use or benefit of both the parties.

[111]   For purposes of disposing of the appeal, I consider that the Court’s factual findings are supported by the evidence and should  not  be  disturbed  on  appeal. This evidence includes a detailed spreadsheet maintained by Mr Goff of transactions whereby he pooled investments, and accounting to ensure that relationship funds were returned with interest. Commenting on this, the Judge said:52

There is in almost every instance a paper trail or oral evidence from the first respondent, but the applicant does not accept the reliability of the first respondent’s accounts, notwithstanding her respect for his financial abilities during the relationship.

[112]   It is plain that the Judge accepted Mr Goff’s evidence despite the attacks on his credibility throughout cross-examination, and the opposing evidence from Ms Lawson and from her accountant. I conclude that the Judge was entitled to accept that the transfers of relationship property to Mr Goff’s account did not have the effect of converting the other property in that account to relationship property. The Judge was entitled to accept Mr Goff’s detailed analysis of the various transactions, as she plainly did. Contrary to Ms Lawson’s submission, the Judge did not view the test as being determined by what Mr Goff’s intention was. Rather, she correctly considered it as a question of fact.

[113]In summary, I am satisfied that there is no error in the Judge’s conclusions.

Mr Goff Snr’s AGT loan balances

[114]   Mr McLean asserts that Mr Goff Snr’s loan balances in the accounts of AGT for the 2015 and 2016 financial years totalling $928,406 is relationship property, and/or that this is now represented by AGT assets that are now relationship property.

[115] As with the previous appeal point, the starting point for Ms Lawson’s assertion is Mr Goff Snr’s loan account recording advances to the AGT for the financial years ending 31 March 2015 ($733,556) and 31 March 2016 (a further $194,850). These figures are derived from the same table in Mr Beylefield’s report discussed earlier at [98]. Again, there was no cross-examination of Mr Goff on these figures. Nor did they figure in submissions at the hearing.

52 At [110].

[116]   I consider the respondents are unduly prejudiced by facing arguments on appeal for the first time based on these specific balances. As discussed above, the Judge cannot be criticised for having made no findings on the balances when the case has been run so differently on appeal.

[117]   However, I do permit Mr McLean to advance his arguments around “intermingling” and on particular transactions giving rise to transfers to Mr Goff Snr’s accounts that Ms Lawson wishes to pursue on appeal and which were the subject of argument and evidence in the Family Court.

[118]I address the intermingling point first.

The intermingling of funds in Mr Goff Snr’s account

[119]   Mr McLean submits that transfers to Mr Goff Snr’s accounts of relationship property converted other funds in that account into relationship property, such that when funds from Mr Goff Snr were then transferred or advanced to the AGT, they were also relationship property.

[120]   Mr Goff acknowledges that certain relationship property was transferred to Mr Goff Snr’s account. For example, as discussed earlier, Mr Goff accepts that he transferred approximately $152,000 of relationship property to Mr Goff Snr, under the misguided notion that he was “repaying” the Settlor Loan. Accordingly, these transfers are included as relationship property on Mr Goff’s side of the ledger in Schedule A annexed to the Family Court Decision. So too is a loan to Mr Goff Snr of

$201,798. Mr Goff also conceded that a loan by the parties of $212,500 to AGT was relationship property. In the case of other transactions, Mr Goff rejects that there was a disposition of relationship property at all. I return to these below.

[121]   In substance, Mr McLean’s proposition is that relationship property became “intermingled” with a third party’s property such that the third party’s property will become relationship property.

[122]   I accept Ms Crawshaw’s submission that this is conceptually flawed and wrong as a matter of law. Mr Goff Snr was the account holder. Any claim against property

held by a third party (even if held by that person as an alleged trustee, as would be the case if some of the funds in Mr  Goff Snr’s accounts were beneficially  owned by  Mr Goff) must be made using one of the available pathways under ss 44–44F of the PRA. Intermingling under s 10 applies to the intermingling of separate property with relationship property, not third-party property with relationship property. Once the funds were transferred to Mr Goff Snr’s account, they were no longer the property of either of the parties. Likewise, funds transferred to AGT were the property of that trust.

[123]   I do not disturb the Judge’s factual finding that Mr Goff had no intention to defeat Ms Lawson’s rights under s 44.

Specific transactions

[124]   There was extensive evidence at trial on the transactions that passed through Mr Goff Snr’s account. Mr McLean argues that the Judge failed to make findings on these transactions and/or incorrectly placed the burden of proof on Ms Lawson to establish that the transactions were relationship property, when, in his submission, the onus lay with Mr Goff to show that funds were his separate property.

[125]Mr McLean describes the primary disputed transactions as follows:

(a)a series of transfers totalling $380,555 in 2009/2010: Ms Lawson says that these represent transfers of relationship property to Mr Goff Snr’s account, while Mr Goff’s evidence was that they represented repayment of a loan from his father;

(b)transfers totalling $39,000, which Mr Goff said was repayment of a loan from his father for a family car; and

(c)a series of transfers totalling $257,255.51 transferred from Pakman Ltd to Mr Goff Snr.

Transfers totalling $380,555

[126]   Ms Lawson claimed that the Judge erred by failing to assess whether payments totalling $380,555 transferred by Mr Goff to his father’s bank account were relationship property. Mr Goff maintained that the payments constituted the repayment of a loan from his father of $350,000 repaid at 4.75 per cent interest. There was extensive affidavit evidence and cross-examination on this topic. Fundamentally, Mr Goff’s consistent position was that this was bridging finance from his father so that he could pay out his business partner’s half share in their company, High Bar Ltd, which the couple later repaid by additional borrowings taken out for this purpose. He maintained that Ms Lawson had been well aware of this at all material times.

[127]   Mr McLean says that the onus lay on Mr Goff to prove that the original loan existed. Mr McLean contends that the Judge erred in this regard by failing to ensure that Mr Goff met this onus. In his oral submissions, Mr McLean cited the cases of Watson v Watson53 and van der Hoeven v van der Hoeven54 for the proposition that the onus of proof is on the person who seeks to  have property classified  as  separate. Mr McLean says that in any event the Judge erred by failing to turn her mind to whether the $380,555 was actually relationship property.

[128]   I accept Ms Crawshaw’s submission that this issue was not raised in the August Submissions, nor was it identified with sufficient particularity in the July Points on Appeal. Nevertheless, I grant leave for the issue to be advanced. Again, any prejudice is addressed by the leave I granted for reply submissions given the extensive evidence on the point at trial. For the reasons set out below, I have concluded that the point lacks merit.

[129]   First, as noted earlier, questions of onus of proof depend on the particular issue or claim before the Court.55 The authorities relied on by Mr McLean involved disputes where one party claimed the property was separate, and the other claimed it was relationship property.56 In the present case, Ms Lawson alleges that the sum of

53     Watson v Watson [1996] NZFLR 673 (CA).

54     Van der Hoeven v van der Hoeven [2020] NZHC 2854, [2022] NZFLR 780.

55     See n 47.

56     Watson v Watson, above n 53, at 675; and van der Hoeven v van der Hoeven, above n 54, at [74].

$380,555 was a disposition to Mr Goff Snr made with intent to defeat her rights under s 44. The onus rests with her to prove that intention.

[130]   Second, putting this to one side, the relevant orders available under s 44 are against the party to whom the disposition was made. Mr Goff Snr was not a party to the proceeding, as the Judge noted in  rejecting  his claims under  s 44  relating to  Mr Goff Snr’s account.57

[131]   Third, the Judge also made a clear finding that Mr Goff did not intend to defeat Ms Lawson’s interests when making transfers to the AGT.58 This finding addresses Ms Lawson’s claims concerning transfers into Mr Goff  Snr’s account,  given that  Ms Lawson characterised these as a conduit to the AGT.59 I am not satisfied that the Judge erred in reaching that conclusion.

[132]   Lastly, Mr Goff was cross-examined extensively on why he made the transfers comprising the $380,555 to Mr Goff Snr. Consideration of that evidence took up several pages of Ms Lawson’s closing submissions on s 44. Given its prominence at the hearing, whether a prior loan was made by Mr Goff Snr is plainly encompassed in the Judge’s finding that she found Mr Goff’s explanations of the transactions credible and consistent.

[133]   Supplementing Mr Goff’s affidavit and oral evidence was an email relating to the loan and supporting bank statements. Mr Goff Snr had also provided an affidavit confirming Mr Goff’s account of matters as it related to him, which included discussion of this loan.60 I accept Ms Crawshaw’s submission that there was ample

57 Family Court Decision, above n 2, at [117].

58 At [120].

59 At [115], the Judge listed the categories of transfers counsel for Ms Lawson alleged were “qualifying dispositions” by her closing submissions. All of these involved transfers to the AGT. The first category listed was  “transfers from the bank account of [Mr  Goff Snr] to AGT”.    Ms Lawson’s list reflects that the only relief sought by Ms Lawson under s 44 was directed at the AGT.

60 I acknowledge that Ms Lawson was unable to test this, as Mr Goff Snr was unavailable to give evidence. Mr Goff Snr did not specifically address the bridging loan in this affidavit filed in opposition to her discovery application, although it did comment on other matters. I do not consider this omission to be significant. Mr Goff Snr’s affidavit addressed his general operation of the account and included specific matters relevant to the discovery sought. Mr Goff’s affidavit provided a detailed account of many transactions involving his father’s account. It is unsurprising that Mr Goff Snr did not address individual transactions in the same manner, but instead confirmed the contents of the affidavit more generally.

evidence supporting the bridging loan from his father. This ground of appeal therefore fails.

$39,000 loan for car

[134]   Mr Goff had given evidence that this transfer was repayment of a loan for a Lexus car and had outlined the circumstances of the loan and repayment. My analysis in the previous section also applies to Ms Lawson’s arguments on this transfer.

Pakman Ltd

[135]   Transfers involving Pakman Ltd raises somewhat different issues. The August Submissions say that the initial Pakman investment was funded from Mr Goff Snr’s account, and that Mr Goff transferred $36,831 from his personal account to his father’s account for Mr Goff Snr to invest. Mr Goff held the shareholding in his name on his father’s behalf. He was also appointed director. Ultimately, funds earned through Pakman and/or the proceeds of sale of the shares were transferred to AGT. Mr McLean submits that that these funds were relationship property. For his part, Mr Goff’s evidence was that his father had funded the acquisition of shares at first, and he had subsequently returned the funds to his father.

[136]   The Judge referred specifically to the Pakman investment only when considering claims under ss 44, 44C and 44F. She stated:

[129]    In preferring [Mr Goff’s] evidence as to the relevant transactions, I have accepted that his investment in [Pakman/Ince] was acquired from his separate property. In that case, the applicant advances a s 44F claim in the alternative on the basis that the transfer of funds from the bank account of [Mr Goff Snr] and [Mr Goff’s] separate bank account were dispositions of relationship property.

[130]    I have not been satisfied to the required standard that relationship property funds were transferred to [Pakman/Ince] and the s 44F claim is therefore dismissed.

[137]   Mr McLean says this last paragraph shows the Judge applied the wrong onus, on the basis that the onus is on Mr Goff to establish property is separate property. There is nothing in this point. The Judge was referring at [129] to the finding she had

already made at the outset61 that she accepted Mr Goff’s evidence on the detailed transactions. This encompassed Mr Goff’s assertion that the Pakman investment was from Mr Goff’s separate property. In short, Mr Goff had already met any onus on him as regards the origins of the funds used to buy Pakman shares. The Judge’s final statement that she was not satisfied there had been dispositions of relationship property to Pakman is an assessment of the claim for compensation under s 44F. It is not directed to the classification of the share investment and its proceeds, which had already been considered.

[138]   Ms Lawson’s claim that transfers relating to Pakman are relationship property derives in part  from her assertion that funds  in Mr  Goff’s personal account and   Mr Goff Snr’s account have all become relationship property due to intermingling. I have already dealt with this submission.

[139]   Mr McLean advances a further argument. He says that Mr Goff’s application of “toil” to the Pakman venture while Ms Lawson was more involved in looking after the family should result in the proceeds of sale of this investment being classified as relationship property. He relies on the case of Rose v Rose.62

[140]   I need not delve into the substance of this argument. Ms Lawson did not advance a submission based on Rose v Rose at trial. It was not raised until oral submissions on appeal. This particular argument raises factual issues. Moreover, the respondents have not addressed the issue in their submissions, possibly because it was only obliquely referred to in the Summary of Oral Presentation.63 It is unfair for the argument to now be advanced. I therefore do not consider it as part of the appeal.

Conclusion

[141]   I have found no error in the Family Court Decision on the transactions the Judge analysed, based on her acceptance of Mr Goff’s evidence. Nor was the Judge in error in rejecting that Ms Lawson had a valid claim under s 44 or 44C of the PRA.

61 At [81], referred to above at paragraph [24].

62     Rose v Rose [2009] NZSC 46, [2009] 3 NZLR 1.

63     This comprises a single line: “Mr Goff worked in the business and added value”.

AMP Policies

[142]   Mr Rowe had assessed two AMP polices as having a value of $27,515. This represented Mr Rowe’s assessment of the increase in surrender value of the policies between the start and end of the relationship. Mr McLean submits that the Judge wrongly allocated the sum of $50,000  to  Ms  Lawson’s  AMP  Policies  and  that Mr Rowe’s assessment should be adopted.64 Mr Goff submits that $50,000 was a relatively conservative estimate in Ms Lawson’s favour, given her evidence at trial.

[143]   Ms Lawson produced documents relating to the two policies under a notice to produce at trial. One of the policies matured in September 2022 and the other matured in April 2023. In cross examination, Ms Lawson confirmed that she had cashed in the former policy. The cash amount received was based on the death benefit of $31,935, a total bonus of $13,614, and a terminal bonus of $8,168. From these latter figures totalling $53,717, the payout was approximately $29,000 after two deductions:

(a)a sum of $18,970 which Ms Lawson had borrowed against the policy post-separation; and

(b)$5,182 in unpaid premiums plus interest.

[144]   Ms Lawson’s evidence was that the unpaid premiums related to the post-separation period, during which she had paid some but not all of the premiums.

[145]   Based on the above, contributions to the  $53,717  cash-in  value  as  at March 2022 include both post-separation premiums paid and those unpaid that have first been deducted before the net sum was paid out.

[146]   The second policy had also matured and appears to have been paid out. As at April 2022, the pay-out value of the second policy $20,205. Again, this will include premiums incurred post-separation.

64 I note that the Family Court Decision is internally inconsistent on this point. In the body of the Decision, the Judge allocates a value of $50,000 to the policy. However, she also adopts a schedule provided by Mr Goff that details his proposed breakdown of the relationship property allocation. The table set out in that schedule uses the value of $27,515 that is provided by Mr Rowe. For the sake of certainty, I address this ground as if the Judge allocated a value of $50,000.

[147]   The value of a life insurance policy at the date of separation is usually the appropriate measure for relationship property purposes. This approach effectively excludes the influence of post-separation premium payments from relationship property calculations. An increase in value after separation — whether due to continued premium payments or the triggering of the policy benefit — is not attributable to the relationship. Here, the policy has matured post-separation. That is partly the product of both the premiums that Ms Lawson paid post-separation, and the deductions made from Ms Lawson’s payout to compensate for unpaid premiums. Accordingly, I am of the view that Ms Lawson only has to account for the $27,515 identified by Mr Rowe as the increase in the policy’s surrender value between the start and end of the relationship.

Savings for Mr Goff’s elder sons

[148]In his Summary of Oral Presentation, Mr McLean says that approximately

$46,000 of funds should be treated as part of the property pool.

[149]   Mr Goff says that he accumulated these funds as “savings” for his elder sons in his personal account. He has always accepted the savings were from relationship property. The savings form part of the sum of $269,065.25 that Mr Goff later transferred to the AGT on 11 July 2014.

[150]   The Judge appears to have found that these transactions were not part of the relationship property pool because Mr Goff had gifted the funds on trust to the elder boys, treating it as equivalent to some savings excluded from the relationship property pool for the couple’s two children. I observe that the latter sums are considerably less.

[151]   I consider the Judge was in error in concluding that there was an effective gift to the elder boys of these funds such that they are excluded from relationship property. In my view the “savings” have a status broadly equivalent to other relationship property Mr Goff accepts he applied to Mr Goff Snr’s account and which he identified at the end of the relationship.65

65 See [120] above.

Other appeal points

[152]   Ms Lawson’s July Points of Appeal raised additional points of appeal that were not pursued in the Summary of Oral Presentation, nor in oral argument. I do not understand them to be pursued, although they were not formally abandoned.

[153]   I have read the evidence and written submissions filed by the respective parties on these aspects.   I see  no error in the Judge’s  conclusions on any of these points.   I address them briefly.

Value of Ms Lawson’s legal practice

[154]   Ms Lawson says that the Judge erred in valuing her legal practice at $40,000. This was an issue included in the terms of Mr Rowe’s brief.

[155]   The Family Court Decision recorded Ms Lawson’s failure to provide information about her legal practice to Mr Rowe.66 It observed that the “opacity of the limited information available” was of little assistance to the Court.67

[156]   Mr McLean contends that Ms Lawson’s legal practice should not be attributed any value on the basis that it largely comprised personal goodwill, which has no value. This was rejected by Mr Rowe and by the Judge. Mr Rowe embarked on a careful analysis of the practice’s income and expenditure for the financial years of 2011-2017.68 He also assessed the goodwill of the practice by reference to other, similarly sized practices he had helped sell in the past. Mr Rowe’s estimated value may well be generous to Ms Lawson. Mr Goff’s position was that Ms Lawson’s legal practice is likely worth considerably more than this sum because of outstanding debtors who owe over $215,000 (of which Mr Rowe was not made aware), and bank balances belonging to the practice valued at over $75,000 at the date of separation.

[157]   Adopting a valuation of $40,000 was certainly open to the Judge on the evidence. No error has been identified.

66     Family Court Decision, above n 2, at [30].

67 At [99].

68     He also assessed the practice’s GST returns for the 2018 and 2019 financial years to estimate the income for those years.

Economic disparity

[158]   Under s 15, the Court may make an order for a lump sum payment to a party, if satisfied that after the relationship ends, the income and living standards of one spouse are likely to be significantly higher than the other because of the effects of the division of functions within the relationship.

[159]   Ms Lawson failed to satisfy the Judge that there is any evidential basis to her claim under s 15. The Judge was not satisfied on the evidence that any disparity in income or living standards existed between the parties following separation.69 This was partly because of the appellant’s inadequate disclosure regarding her legal practice. Further, the Judge was far from satisfied that the division of functions within the relationship were the cause of any alleged disparity.70 Having considered the evidence, I agree with this conclusion. No error has been identified.

Constructive trust

[160]   Ms Lawson’s  claim of a constructive trust was founded in her belief that    Mr Goff applied relationship property to the AGT. The Judge rejected that claim. To the extent that Mr Goff has transferred relationship property directly to the AGT or through Mr Goff Snr, the Judge accepted Mr Goff’s explanations. Where Mr Goff accepted he had applied relationship property, this was accounted for to the relationship property pool.

[161]   As to evidence of Ms Lawson’s contributions and whether she could have any reasonable expectation to an interest, the Judge observed that Ms Lawson could not claim to have had any such expectation, whilst at the same time disavowing any knowledge of the application of relationship property to the AGT. There is logic in that conclusion. There was no other evidence to support the constructive trust claim and it was accordingly dismissed by the Judge.71

69     Family Court Decision, above n 2, at [100].

70     At [99]–[100].

71 At [35].

[162]   Ms Lawson submits that the Judge “failed to properly apply the law regarding constructive trusts” and relies on the alleged use of relationship property funds to acquire assets held by the AGT. This is property acquired with what Mr Goff had explained were loans to the AGT. The Judge accepted Mr Goff’s evidence on these transactions. I do not consider there is an error in this conclusion. This ground of appeal fails.

Result and orders

[163]In summary, I allow the appeal in respect to the following matters:

(a)that the Judge erred by classifying Mr Goff’s Settlor Loan account with the LGFT of $310,300 as Mr Goff’s separate property when this should have been classified as relationship property;

(b)Ms Lawson’s life insurance policies are to be valued at $27,516, not

$50,000; and

(c)the sum of $46,915 viewed by Mr Goff as savings for his elder sons from relationship property is to be reclassified as relationship property for which Mr Goff is to account to the property pool.

[164]   I vary the orders made by the Judge to give effect to the findings above.        I reserve leave on the final form of orders, and this judgment is interim to that extent.

[165]I otherwise dismiss the appeal.

[166]   The respondents are to file submissions as to costs within 10 working days. Ms Lawson is to file submissions on costs within a further 10 working days. I will determine costs on the papers.

Anderson J