LDS v MFG - [2024] NZHC 499

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-228

[2024] NZHC 499

BETWEEN
LDS

Appellant

AND

MFG

First Respondent

AND

MGA, MMC and

LANDSBOROUGH TRUSTEE SERVICES

NO 1 LIMITED as Trustees of the G&MM FAMILY TRUST

Second Respondents

Hearing: 19 February 2024

Appearances:

A S P Tobeck for the Appellant

D R Mills-Godinet for the First Respondent C R Johnstone for the Second Respondent

Judgment:

8 March 2024

JUDGMENT OF HARLAND J

Introduction

[1] This is an appeal against a judgment of the Family Court1 dismissing an application by LDS to join the trustees of the G&MM Family Trust (the Trust) to proceedings between LDS and his former wife MFG concerning the division of their relationship property.2 The parties agree that a dwellinghouse, located on land owned

1 LDS v MFG […]
2 The appeal is brought pursuant to rr 20.4-20.9 of the High Court Rules 2016 and s 174 of the Family Proceedings Act 1980.

LDS v MFG [2024] NZHC 499 [8 March 2024]

by the Trust, is relationship property but they disagree about whether all or part of that land, comprising some 41 ha, is relationship property.

[2] It is accepted that the value of the dwellinghouse and land are key issues in the proceedings, including how the appellant’s interest, whatever it might be, is to be realised. The appellant’s case is that the trustees would need to be involved should an order for sale be required. This seems to be the rationale for asking the Court to join the Trust as a party to the relationship property proceedings.

[3] The appellant submits that the dwellinghouse is a fixture to and therefore part of the land. He also submits that both respondents have admitted that the partners to the relationship have an equitable interest in the land, the trustees should be joined to the proceedings and the appeal allowed.

[4] The respondents oppose the appeal. They submit the Judge was correct to determine that, as the trustees are not one of the relationship partners, the Family Court cannot make determinations as to the land owned by the Trust, as this would need to be the subject of separate civil proceedings in the High Court. They further submitted that the dwellinghouse is not a fixture in the sense contended for by counsel for the appellant but, even if it is, that does not affect the fact that the land has never been held by the first respondent and is therefore outside the jurisdiction of the Property (Relationships) Act 1976 (PRA).

[5] I have decided to dismiss the appeal. This judgment sets out my reasons for doing so.

Background

[6] The dwellinghouse is situated on 41.764 ha of land that is held by the trustees pursuant to a Deed of Trust executed on 29 June 2004. The first respondent is one of the three daughters of the settlors of the Trust and one of the discretionary beneficiaries under cl 1.1.3 of…

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 LDS v MFG

Details

AGLC: LDS v MFG [2024] NZHC 499
Case: [2024] NZHC 499
Decision Date: 8 March 2024

CaseChat Overview and Summary

LDS appeals against the Family Court's decision to dismiss his application to join the trustees of the G&MM Family Trust (the Trust) to proceedings concerning the division of his relationship property with his former wife MFG. LDS argues that the dwellinghouse on land owned by the Trust is relationship property because it is a fixture to the land and that, if an order for sale is required, the trustees should be joined to the proceedings. MFG and the Trust oppose the appeal, arguing that the Family Court does not have jurisdiction to determine the ownership of the land as it is not relationship property.

Harland J dismissed the appeal, finding no error in the Family Court's decision. The Judge noted that the dwellinghouse is not a fixture in the sense contended for by LDS and that the land does not belong to the house. The Judge also found that the trustees are not one of the relationship partners and that the Family Court cannot make determinations as to the land owned by the Trust. The Judge further found that the respondents have not admitted that the parties to the relationship have an equitable interest in the land.

Harland J concluded that the presence of the trustees as a party is not necessary to enable the Court to effectively and completely adjudicate on and settle all questions involved in the relationship property proceedings between LDS and MFG. The Judge found that any equitable interest in the land claimed by LDS would need to be established in this Court.

The appeal is dismissed.

Orders