Mah v DJP - [2014] NZHC 1520

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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-4698 [2014] NZHC 1520

BETWEEN
M A H

First Appellant

AND

168 GROUP LIMITED Second Appellant

AND

D J P Respondent

Hearing: 19-20 March 2014

Counsel:

T G Stapleton QC for First Appellant
B A Corkill QC and J L Wademan for Second Appellant
R A Newberry and S M Morrison for Respondent

Judgment:

2 July 2014

JUDGMENT OF SIMON FRANCE J

M A H v 168 GROUP LTD [2014] NZHC 1520 [2 July 2014]

Table of contents

Paragraph No.

Introduction [1] Issue one : the College Street property [3]
The basis on which College Street was placed in the
parties’ joint names [18]

Applying the conclusion that Ms P was not, to her knowledge, the beneficial owner of the College Street property to the
s 44 application  [31]
Was 168 Group Limited entitled to the money?  [33] Mr H cannot now deny Ms P’s beneficial interest  [36] Order under s 44(2) that 168 Group Ltd repay
the funds distributed to it from the sale of the
College Street property  [43]

Issue two : were various items properly classified as
relationship property? [54] The current accounts [55] Money held by Mr H on behalf of his father [60] Shares [63]

Conclusion [69]

Introduction

[1] This is an appeal against aspects of a Family Court decision determining relationship property disputes between Mr H and Ms P following the end of their marriage.1 The parties commenced a de facto relationship in September 1998, were married in October 2002 and their marriage ended in late 2008. It was the second marriage for Mr H. The couple have one child concerning whom Ms P has primary care.

[2] There are two main issues to be determined on this appeal:

(a) whether the Court erred in concluding that the proceeds of the sale of a property in College Street, Wellington (the College Street property) had been disposed of by Mr H in circumstances bringing the disposition within s 44 of the Property (Relationships) Act 1976 (the Act). If the Court did not err in that conclusion, a secondary issue arises as to whether it was correct to require the second appellant, the recipient of the funds, to account for them; and

(b)whether the Court erred in its decisions on whether some discrete property items were or were not relationship property.

Issue one : the College Street property

[3] I turn now to the primary issue on the appeal, which is the assessment of Mr H’s intent when disposing of the proceeds of the College Street property. In doing so I remind myself of the advantages a trial Judge has, but also observe the Family Court expressly declined to make any general credibility findings about the parties. This is a general…

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 Mah v DJP

Details

AGLC: Mah v DJP [2014] NZHC 1520
Case: [2014] NZHC 1520
Decision Date: 2 July 2014

CaseChat Overview and Summary

This appeal concerns a Family Court decision determining relationship property disputes between the parties following the end of their marriage. The appeal was concerned with two main issues: (a) whether the Court erred in concluding that the proceeds of the sale of a property in College Street, Wellington had been disposed of by Mr H in circumstances bringing the disposition within s 44 of the Property (Relationships) Act 1976; and (b) whether the Court erred in its decisions on whether some discrete property items were or were not relationship property.

On the first issue, the Court concluded that the parties had intended the College Street property to be held beneficially for the entities that provided the funding for its purchase. The Court held that the disposition of the proceeds of the sale was not done to defeat Ms P’s interests, as she had no beneficial interest in the property. The Court found that the order made against 168 Group Ltd was made in breach of 168 Group Ltd’s right to be heard, and quashed the order.

On the second issue, the Court found no error in the Family Court’s decisions on whether some discrete property items were or were not relationship property. The Court confirmed the findings of the Family Court and dismissed this aspect of the appeal.

The Court indicated that 168 Group Ltd is entitled to scale costs, and reasonable disbursements, and that Mr H and Ms P should agree to him receiving a percentage of scale costs.

Orders