Miller v Colville - [2024] NZHC 369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001999

[2024] NZHC 369

IN THE MATTER OF of an Appeal against a decision of the Family Court at North Shore

BETWEEN

ALAN GARRY MILLER

Appellant

AND

TRACEY LEE COLVILLE

Respondent

Hearing: 13 February 2024

Appearances:

P J Kennelly for the Appellant B Glasgow for the Respondent

Judgment:

4 March 2024

JUDGMENT OF WHATA J

Appeal

This judgment was delivered by me on 4 March 2024 at 4.00pm,
pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:
Kennelly Law, Orewa
Denham Bramwell, Manukau

MILLER v COLVILLE [2024] NZHC 369 [4 March 2024]

[1] Mr Miller and Ms Colville separated in 2019. In 2001, shortly after they commenced their relationship, Mr Miller purchased a house at Matakatia with his brother. They formed a partnership for the purpose of the purchase. Mr Miller and Ms Colville lived at the property before travelling to Australia in 2003. On their return in 2017, they stayed at the Matakatia property until their separation. Mr Miller claims the Matakatia property is his separate property. Ms Colville claims it is the family home and relationship property. Judge Burns agreed with Ms Colville. This is the appeal.

Background facts

[2] The following key facts are not disputed. The relationship commenced in about July 2001. The Matakatia property was purchased in December 2001, with settlement occurring in March 2002. The property is owned by the two Miller brothers in half shares. Mr Miller used proceeds from the sale of his former house as his contribution. They set up a partnership for the purchase. They were and remain registered as tenants in common in equal shares. The property was occupied by Mr Miller and Ms Colville with her two children from a former relationship from December 2001, until they left to live in Sydney in mid-2003. The property was mortgaged to enable Mr Miller and Ms Colville to obtain a loan of at least $100,0001 to purchase a home in Sydney. Both Mr Miller and Ms Colville were employed, and both made contributions to living and other expenses from this time. A house in Sydney was purchased at the end of 2003. They lived there until mid-2008, when they sold this home and moved to Brisbane, buying another home together.2

[3] In 2016, Mr Miller became ill and had to stop work for a time. During this period Mr Miller had no income. A decision was made to move back to New Zealand in July 2017. Ms Colville returned to New Zealand, followed by Mr Miller in November the same year. They separated in June 2019. The house is presently subject to a mortgage of about $275,000.

1 Mr Miller says it was about $150,000. Nothing turns on this point.
2 Affidavit of Ms Colville dated 25 March 2022 at [14] – [21].

Disputed facts

[4] Ms Colville claims that on her return she took over the…

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 Colville

Details

AGLC: Miller v Colville [2024] NZHC 369
Case: [2024] NZHC 369
Decision Date: 4 March 2024

CaseChat Overview and Summary

The case of Miller v Colville involves an appeal against a decision of the Family Court at North Shore, where the central issue was the classification of the Matakatia property as separate or relationship property under the Property (Relationships) Act 1976. Mr Miller, the appellant, claims the property is his separate property, whereas Ms Colville, the respondent, asserts it is the family home and thus relationship property. The Family Court judge, Burns, found in favour of Ms Colville, and Mr Miller appealed this decision.

The primary legal issues the court had to decide were whether the Family Court judge erred in characterising the property as relationship property and whether there were any extraordinary circumstances that would render equal sharing repugnant to justice. Mr Miller's appeal hinged on the alleged representation by Ms Colville that she had no interest in the property at the beginning of the relationship. Mr Kennelly, counsel for the appellant, argued that this representation should have set the starting point for evaluating the likelihood of the property qualifying as relationship property, thereby rendering Ms Colville estopped from denying the property was separate property.

The court examined the evidence and noted that although there was no cross-examination, the available written evidence suggested that Ms Colville may have made such a representation. However, the court found that the property was used by the parties as their family home both at the beginning and towards the end of their relationship, supporting the inference that it was acquired for the specific purpose of being used as a family home. The court further held that despite any initial representation, the property's use as a family home outweighed any contention that it remained separate property.

The court rejected Mr Kennelly's arguments regarding estoppel, s 13 of the Act, and s 21H. It found that there were no extraordinary circumstances that would make equal sharing repugnant to justice and that the requirements for an oral agreement under s 21H had not been satisfied. The court concluded that the Family Court judge did not err in characterising the property as relationship property and dismissed the appeal.

The court ordered that Ms Colville is entitled to costs on a 2B basis together with disbursements to be fixed by the Registrar. The appeal was accordingly dismissed.

Orders