M v G - [2012] NZHC 1798

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2011-454-000796 [2012] NZHC 1798

UNDER the Property (Relationships) Act 1976

BETWEEN M Appellant

ANDG Respondent

Hearing: 12 July 2012

Counsel: R P Harley for Appellant
A R Bell and D I Sheppard for Respondent

Judgment: 23 July 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 23rd day of July 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1] Ms M appeals four findings made by the Family Court in a decision delivered on 17 October 2011 (substantive judgment). She also appeals a costs decision made
by the Family Court on 27 January 2012 (costs judgment).

M V G HC PMN CIV-2011-454-000796 [23 July 2012]

[2] The four aspects of the substantive judgment which Ms M challenges are:

(1)The conclusion that the parties lived together as a couple from November 2005. Ms M says that the parties commenced their de facto relationship in January/February 2005.

(2) The consequential finding that an interest in a farm acquired by Mr G

in May 2005 was not relationship property.

(3)The Family Court’s finding that s 9A(1) of the Property (Relationships) Act 1976 (the Act) was not applicable in the circumstances of this case. The Family Court ruled that Ms M did not directly contribute to an increase in the value of the farm.

(4) The calculation of the award made under s 17 of the Act, concerning

Ms M’s contribution to the “sustenance” of the farm.

Determining an appeal of this nature

[3] An appeal of this nature is conducted as a rehearing pursuant to s 39 of the Act, ss 72 and 75 of the District Courts Act 1947 and r 20.18 of the High Court Rules. The Court is not bound to accept the Family Court’s findings of fact and is entitled to exercise any power or discretion available to the Family Court. The Court must exercise its own judgement but, where appropriate, the Court may give weight to the findings of the Family Court.

[4] In Austin, Nichols & Co Inc v Stichting Lodestar, the Supreme Court said that when considering a general appeal from a decision of the Trade Marks Commissioner, the High Court is required to:1

... come to its own view on the merits. The weight it gives to the decision of the Commissioner is a matter of judgment [sic]. If the High Court is of a different view from the Commissioner and is, therefore, of opinion that the Commissioner’s decision is wrong, it must act on its own view.

1 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]

[5] The Court went on to say:2

Those exercising general rights 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 M v G

Details

AGLC: M v G [2012] NZHC 1798
Case: [2012] NZHC 1798
Decision Date: 23 July 2012

CaseChat Overview and Summary

The appellant, Ms M, appeals a decision of the Family Court that: (1) the parties’ de facto relationship commenced on 20 November 2005; (2) an interest in a farm acquired by the respondent, Mr G, in May 2005 was not relationship property; (3) s 9A of the Property (Relationships) Act 1976 was not applicable; and (4) the award made under s 17 of the Act, concerning Ms M’s contribution to the “sustenance” of the farm, was appropriate. The appeal was dismissed. In reaching this conclusion, Collins J noted that the evidence established the parties started seeing each other around Christmas 2004 and that their sexual relationship started in February 2005. However, their relationship at that time did not have the hallmarks of a de facto relationship. The Court was satisfied that the Family Court Judge’s conclusion that the parties commenced their de facto relationship when Ms M moved to Kalgoorlie on 20 November 2005 was correct. The Court held that the family farm was not relationship property because it was acquired by Mr G before the parties commenced their de facto relationship. The Court also held that s 9A of the Act was not applicable because the mortgage payments made by Ms M did not constitute an increase in the value of the farm. Finally, the Court held that the award made under s 17 of the Act was appropriate because the contributions made by Ms M to the payment of the mortgage did not constitute an increase in the value of the farm.

Orders