Murphy v Kliangklao-Welsh

[2014] NZHC 3120

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1697 [2014] NZHC 3120

UNDER

the Property (Relationships) Act 1976

BETWEEN

IAN ROBERT MURPHY Appellant

AND

KANLAYARAT KLIANGKLAO- WELSH

Respondent

Hearing:	28 October 2014
Appearances:	Mr D Singh for Appellant Mr R Rao for the Respondent
Judgment:	8 December 2014

JUDGMENT OF THOMAS J

This judgment was delivered by me on 8 December 2014 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Shean Singh, Auckland. Jeremy Sutton, Auckland.

MURPHY v KLIANGKLAO-WELSH [2014] NZHC 3120 [8 December 2014]

Introduction

[1]      The appellant, Mr Murphy, has appealed from the judgment of Judge Adams delivered in the Family Court at Auckland on 20 June 2014 following a three day hearing on 11-13 June 2014.1

The judgment under appeal

[2]      The respondent, Ms Kliangklao-Welsh, had applied for orders dividing the parties’ relationship property pursuant to the Property (Relationships) Act 1976 (the Act).

[3]      At the hearing Mr Murphy conceded the existence of a de facto relationship, which he had hitherto denied, and withdrew his claim that the parties had entered into a binding oral relationship property agreement.

[4]      The Judge rejected Mr Murphy’s claim of misconduct on the part of Ms Kliangklao-Welsh and his claim that circumstances made equal sharing repugnant to justice.

[5]      The Judge identified, valued and divided the parties’ relationship property in equal shares.  He found that Mr Murphy was wrongfully in possession of jewellery belonging to Ms Kliangklao-Welsh which she had inherited from her mother and ordered that he compensate her for its value.

[6]      To the extent that he had jurisdiction to do so the Judge included assets in the name of Ms Kliangklao-Welsh in Thailand as relationship property.  Real property in Thailand owned by Ms Kliangklao-Welsh could not be included as it was outside his jurisdiction.

Grounds of appeal

[7]      The appeal is on grounds that the Judge erred in finding that:

1      Kliangklao-Welsh v Murphy [2014] NZFC 5024.

(1)some moveable property in Thailand was not relationship property and that the proceeds of sale of a house at Valentine Street ($48,566.62) were relationship property;

(2)$135,787 transferred out of New Zealand by Ms Kliangklao-Welsh was not relationship property;

(3)funds transferred to Ms Kliangklao-Welsh’s mother or third parties and funds applied in respect of a motor vehicle purchase were not relationship funds;

(4)Ms Kliangklao-Welsh did not covertly divert relationship funds out of the country and there was no extraordinary circumstance such that it would be repugnant to justice for equal sharing (ss 13 and 18A of the Act).

[8]      The complaints fall under three heads: Valentine Street and whether it was the family home; the jewellery; and alleged misconduct on the part of Ms Kliangklao- Welsh.   I will examine these issues separately before returning to address each ground of appeal.

Approach to general appeal

[9]      On a general appeal, the appellate court has the responsibility of considering the merits of the case afresh.2    In Austin, Nichols & Co Inc v Stichting Lodestar,…