Melody v Melody - [2012] NZHC 1636

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2012-443-200 [2012] NZHC 1636

BETWEEN GINA AMANDA MELODY Appellant

ANDPETER COLIN MELODY First Respondent

ANDMELODY GROUP LIMITED First Non Party Respondent

ANDMELODY HOLDINGS LIMITED Second Non Party Respondent

ANDMELODY HOLDINGS (NP) LIMITED Third Non Party Respondent

ANDMELODY ASSETS LIMITED Fourth Non Party Respondent

ANDTRUSTEES OF THE PC MELODY TRUST NO. 1
Fifth Non Party Respondent

Hearing: 4 July 2012

Appearances: P J Mooney for the appellant
No appearance for the respondent as respondent abiding
B Scott for the first to fifth non party respondents

Judgment: 10 July 2012

JUDGMENT OF CLIFFORD J

Introduction

[1] This is an appeal by Mrs Melody, in the course of relationship property proceedings between her and her husband the respondent Mr Melody, against a

MELODY v MELODY HC NWP CIV-2012-443-200 [10 July 2012]

decision of Judge Courtney in the Family Court at New Plymouth declining her application for discovery against the first to fifth non parties.

Facts

[2] Mrs and Mr Melody separated in 2010 after a 19 year relationship.

[3] In 1998 Mr Melody settled the PC Melody Trust No. 1. The PC Melody Trust is a family trust: the discretionary beneficiaries are Mrs and Mr Melody and their children. The final beneficiaries are Mrs and Mr Melody’s children. As settlor, Mr Melody has a power of appointment, but not removal, of trustees. Mr Melody was himself originally a trustee, but is no longer.

[4] Shortly after its establishment the PC Melody Trust became (along with two other trusts owned by Mr Melody’s two siblings) a shareholder in Melody Group Limited. Melody Group purchased shares in Melody Holdings Ltd and Melody Holdings (NP) Ltd in February 1999 from Mr Melody’s parents and the BP Melody Family Trust, a family trust settled by Mr Melody’s father. Melody Holdings and Melody Holdings (NP) own the New World Palmerston North and the Pak ‘n Save New Plymouth supermarkets respectively. Mr and Mrs Melody were involved in working in the Pak ‘n Save New Plymouth supermarket throughout their marriage. Melody Group Ltd is also the sole shareholder of Melody Assets, which owns various titles to land associated with those supermarkets.

[5] Mr Melody issued relationship property proceedings in 2010. In his affidavit of assets and liabilities, Mr Melody described the establishment of the PC Melody Trust, and related matters, in the following terms:

The settlement of this Trust coincided with my father selling his interests in a New World supermarket in Palmerston North and a Pak ‘n Save supermarket in New Plymouth to Melody Group Limited, a company incorporated by myself and two of my brothers namely Alan Melody and Kerry Melody.

Other subsidiary companies have been incorporated in accordance with accounting advice received over the years. These were Melody Holdings Limited, Melody Holdings (NP) Limited, Melody Assets Limited. In each case the shareholder of the subsidiaries has been Melody Group Limited.

I have tried to secure information about the accounts for these companies but my requires for…

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 Melody v Melody

Details

AGLC: Melody v Melody [2012] NZHC 1636
Case: [2012] NZHC 1636
Decision Date: 10 July 2012

CaseChat Overview and Summary

The appellant, Mrs Gina Amanda Melody, appeals a decision of the Family Court at New Plymouth, declining her application for discovery against various respondents, including her husband Mr Peter Colin Melody and several entities associated with him. The appeal arises in the context of relationship property proceedings between the parties. Mrs Melody seeks the annual accounts of certain companies for the years 2008 to 2011, as well as details of arrangements between the PC Melody Trust and Mr Melody’s parents concerning the purchase of a supermarket. The Family Court Judge declined the application, finding that the claims Mrs Melody sought to advance were not sufficiently developed to justify discovery of the requested documents. The Judge did, however, direct the filing of an affidavit detailing Mr Melody’s current accounts with the relevant entities.

The legal issues in this appeal revolve around whether the Family Court Judge’s decision to deny Mrs Melody’s application for discovery is appealable and, if so, whether it contains any error of fact or law. The court must also consider the jurisdictional issues regarding the appealability of the Family Court decision under sections 39 of the Property (Relationships) Act and 72 of the District Courts Act.

The High Court found that while the information sought could potentially be relevant to Mrs Melody’s claims, it was not necessary at this stage. The Judge’s decision not to order discovery was not an error of fact or law, as it was based on the current state of Mrs Melody’s claims. The Judge had correctly identified the need for further disclosure regarding Mr Melody’s current accounts, which had now been provided. The court concluded that there was no basis to interfere with the Family Court Judge’s decision, given its interim nature and the experienced judgment of the Judge. The jurisdictional issues were not pursued further as the appeal did not need to be addressed on those grounds. The court also noted that the question of costs was not before it.

Orders