Martin v Marsh - [2014] NZHC 2354

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 AUCKLAND REGISTRY

CIV-2013-404-4903 [2014] NZHC 2354

IN THE MATTER
of an appeal under s 39(1)(b) of the

Property (Relationships) Act 1976

BETWEEN

GABRIELLE JOY MARTIN Appellant

AND

BRETT ANTHONY MARSH as administrator of the Estate of LEE CLIFFORD MARSH (Deceased) Respondent

Hearing: 25 March 2014

Counsel:

BM Ward for Appellant
RC Knight and TA Chubb for Respondent

Judgment:

26 September 2014

JUDGMENT OF BREWER J

This judgment was delivered by me on 26 September 2014 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Gellert Ivanson (Auckland) for Appellant
Sean Kelly Lawyers (Auckland) for Respondent

Counsel: RC Knight

MARTIN v ESTATE OF MARSH [2014] NZHC 2354 [26 September 2014]

Introduction

[1] Mr Lee Marsh and Ms Gabrielle Martin knew each other from 1980 until Mr Marsh’s death in 2010. They got married in 1986 and divorced in 1991, but continued to see each other. At times, and for various periods, Ms Martin would stay with Mr Marsh at his unit in Kingsway Avenue, Mt Albert. The two enjoyed travelling overseas together. Ms Martin says that from 2000 to 2004 she lived continuously with Mr Marsh.

[2] Ms Martin had a house in Christchurch, the city to which she moved in 1988 when she and Mr Marsh first separated. Ms Martin sold the house in 2004 and bought another in Takapuna. She says that from then until 2009 she divided her time equally between her Takapuna home and Mr Marsh’s Kingsway Avenue unit.

[3] In January 2009, the relationship between Ms Martin and Mr Marsh took a turn for the worse. They ceased to have contact and, on 17 December 2010, Mr Marsh died.

[4] Mr Marsh left his estate to his mother and brothers. He made his Will in February 2006, at a time when his relationship with Ms Martin still had three years to run. He did not leave anything to Ms Martin. However, in May 2009, a few months after their relationship ended, Mr Marsh made an addendum to his Will giving permission to Ms Martin to take any personal items as mementoes.

[5] Ms Martin believes she is entitled to more than some personal items as mementoes. In her view, she and Mr Marsh were in a de facto relationship prior to their separation in January 2009, and so she is entitled to a share of his estate pursuant to the Property (Relationships) Act 1976. Her claim under that Act was heard in the Family Court at Auckland by Judge FJ Eivers in 2013.1 The Judge decided that the relationship between Mr Marsh and Ms Martin was not a de facto
relationship and dismissed Ms Martin’s claim. Ms Martin now appeals that decision.

1 GJM v BM [2013] NZFC 3316.

Issues

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 Martin v Marsh

Details

AGLC: Martin v Marsh [2014] NZHC 2354
Case: [2014] NZHC 2354
Decision Date: 26 September 2014

CaseChat Overview and Summary

Gabrielle Joy Martin appeals the decision of the Family Court that she was not in a de facto relationship with Lee Clifford Marsh from 2000 to 2009. The appeal was heard on 25 March 2014. Martin claims she is entitled to a share of Marsh's estate under the Property (Relationships) Act 1976. The appeal concerns the relationship between Martin and Marsh from 1980 to 2010. They got married in 1986 and divorced in 1991 but continued to see each other. From 2000 to 2004, Martin lived continuously with Marsh at his unit in Kingsway Avenue, Mt Albert. Martin sold her house in Christchurch in 2004 and bought another in Takapuna. From then until 2009, she divided her time equally between her Takapuna home and Marsh's Kingsway Avenue unit. In January 2009, the relationship between Martin and Marsh took a turn for the worse. They ceased to have contact and, on 17 December 2010, Marsh died. Marsh left his estate to his mother and brothers. He made his Will in February 2006, at a time when his relationship with Martin still had three years to run. He did not leave anything to Martin. However, in May 2009, a few months after their relationship ended, Marsh made an addendum to his Will giving permission to Martin to take any personal items as mementoes. Martin believes she is entitled to more than some personal items as mementoes. In her view, she and Marsh were in a de facto relationship prior to their separation in January 2009, and so she is entitled to a share of his estate pursuant to the Property (Relationships) Act 1976. Her claim under that Act was heard in the Family Court at Auckland by Judge FJ Eivers in 2013. The Judge decided that the relationship between Marsh and Martin was not a de facto relationship and dismissed Martin’s claim. Martin now appeals that decision. The issues are whether the Judge got the facts wrong, the law wrong, or made mistakes of law and/or fact which mean that her conclusion is wrong. The appeal was dismissed.

Orders