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Miller v Carey

Miller v Carey

Case [2015] NZHC 887 30 April 2015

De Facto Relationship

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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

THE PUBLIC VERSION OF THIS JUDGMENT CONTAINS REDACTIONS OF SENSITIVE PERSONAL INFORMATION.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000319 [2015] NZHC 887

IN THE MATTER OF THE PROPERTY (RELATIONSHIPS) ACT 1976

BETWEEN

JONATHAN JAMES RONALD MILLER Appellant

AND

SUZANNE LESLEY CAREY Respondent

CIV-2014-409-000591

IN THE MATTER OF

THE PROPERTY (RELATIONSHIPS) ACT 1976

BETWEEN

JONATHAN JAMES RONALD MILLER Appellant

AND

SUZANNE LESLEY CAREY Respondent

Hearing: 4 February 2015

Appearances:

S van Bohemen for Appellant
P Cowey for Respondent

Judgment:

30 April 2015

JUDGMENT OF GENDALL J

MILLER v CAREY [2015] NZHC 887 [30 April 2015]

Introduction

[1] The appellant (Mr Miller) appeals against a decision of Judge N A Walsh in the District Court at Christchurch, first, making certain findings effectively against him in relation to relationship property,1 and, secondly, awarding costs on a 2B basis in the respondent’s (Ms Carey’s) favour.2 In particular, Mr Miller seeks to challenge the following aspects of the decision:

(a) the finding that the de facto relationship between Mr Miller and

Ms Carey commenced in August 2007;3

(b)the order that the net sale proceeds of the former family home be divided equally amongst Mr Miller and Ms Carey;4

(c) the finding that the de facto relationship was not one of short duration;5

(d) the decision to treat the increase in value of Mr Miller’s shares in

North Canterbury Rutbusters Ltd as relationship property;6

(e) the decision to not make any award to Mr Miller for his post- separation contributions, by way of reduction of mortgage debt, of
$30,785.7

[2] Mr Miller now seeks to reverse those findings. In particular, he seeks:

(a) an order pursuant to s 2E of the Property (Relationships) Act 1976

(the Act) that the parties’ relationship was one of short duration;

1      SLC v JJRM [2014] NZFC 3087 [Substantive Decision].
2      Carey v Miller [2014] NZFC 6320 [Costs Decision].
3      Substantive Decision, above n 1, at [151] and [205].
4      At [205](2).
5 At [162].
6      At [194]–[196].
7 At [205].

(b)an order pursuant to s 14A of the Act that no order for division of relationship property be made under the Act;

(c) in the alternative, if the Court determines to make orders for division under the Act:

(i)an order pursuant to s 14A(3) that the parties’ relationship property be divided 70/30 in favour of Mr Miller in accordance with their respective contributions to the de facto relationship;

(ii)an order pursuant to s 9A(2) that none of the increase in value of Mr Miller’s shares in North Canterbury Rutbusters Ltd is attributable to the actions of Ms Carey;

(iii)an order pursuant to s 18C that Ms Carey compensate Mr Miller for his post separation contributions to the relationship by way of mortgage principal reduction; and

(d) costs.

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 Miller v Carey

Details

AGLC: Miller v Carey [2015] NZHC 887
Case: [2015] NZHC 887
Decision Date: 30 April 2015

CaseChat Overview and Summary

In the High Court of New Zealand Christchurch Registry, Jonathan James Ronald Miller appeals against a decision of Judge Walsh in the District Court at Christchurch, seeking to challenge certain findings made against him in relation to relationship property. In particular, Mr Miller seeks to challenge the finding that the de facto relationship between him and Suzanne Lesley Carey commenced in August 2007, the order that the net sale proceeds of the former family home be divided equally amongst Mr Miller and Ms Carey, the finding that the de facto relationship was not one of short duration, the decision to treat the increase in value of Mr Miller’s shares in North Canterbury Rutbusters Ltd as relationship property, and the decision to not make any award to Mr Miller for his post-separation contributions, by way of reduction of mortgage debt, of $30,785. The appeal is advanced on the basis that Judge Walsh fell into errors of fact and law in his judgment. The court found that Judge Walsh fell into error in categorising the start date of the de facto relationship between Ms Carey and Mr Miller as being August 2007. The court found that the parties were not living together as a couple until sometime between mid to late 2008. The result of this, applying an appropriately rigorous test to the questions at issue, the court found that the parties were in a de facto relationship but one of short duration, being less than three years, as defined by s 2E of the Act, until their separation in early 2011. The appeal was allowed. Pursuant to s 14A of the Property (Relationships) Act 1976, Ms Carey is to receive 30 per cent, and Mr Miller is to receive 70 per cent, of the ‘base’ relationship property valued at $462,611.33. Pursuant to s 9A of the Property (Relationships) Act 1976, Ms Carey is to receive 25 per cent, and Mr Miller is to receive 75 per cent, of the value of the increase in value of Mr Miller’s shares in North Canterbury Rutbusters Ltd, which is $115,113. The appeal against Judge Walsh’s costs order in the substantive proceeding was dismissed. There is no order made as to costs on this appeal. Costs on the appeal before the court are to lie where they fall.

Orders