Nelson v Gibson - [2017] NZHC 2715

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA
AHURIRI ROHE

CIV-2017-441-60 [2017] NZHC 2715

UNDER
PROPERTY RELATIONSHIPS ACT

1976

BETWEEN

RAEWYN ANN NELSON Applicant

AND

MARK COLIN GIBSON Respondent

CIV-2017-441-34

IN THE MATTER of constructive trust claims by the plaintiff

BETWEEN RAEWYN ANN NELSON Plaintiff
ANDPETER CARL NEUMEGEN AND MARK COLIN GIBSON
Second Defendants

ANDEXPLORER BUS LIMITED (RECENTLY RENAMED AS GIBBO LIMITED)
Third Defendant

Hearing: 19 October 2017

Counsel:

M E J Macfarlane for the applicant in proceeding CIV-2017-
441-60 (plaintiff in proceeding CIV-2017-441-34)
G Harrison for Mr M Gibson (respondent in proceeding CIV-

2017-441-60, and first defendant and second-named second defendant in proceeding CIV-2017-441-34), and for the third defendant in proceeding in CIV-2017-441-34

Judgment:

6 November 2017

NELSON v GIBSON [2017] NZHC 2715 [6 November 2017]

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] Ms Nelson is the applicant in an application for orders under the Property (Relationships) Act 1976 (the PRA proceeding) which was originally commenced in the Family Court but subsequently transferred to this Court. She is also the plaintiff in a civil proceeding in this Court claiming relief under an alleged constructive trust or trusts (the constructive trust proceeding). She seeks an order for particular discovery against Mr Gibson in both proceedings, and against the other defendants named in the constructive trust proceeding.

Background

[2] Ms Nelson and Mr Gibson are former partners in a de facto relationship which began in or about August 1995 and ended in September 2014. There is one child of their relationship.

[3] At various times in their relationship Ms Nelson and Mr Gibson lived at addresses in both Napier and Auckland. Ms Nelson and Cara presently reside in a Napier property owned by a trust called the Belladonna Trust. The trustees of the Belladonna Trust are Mr Gibson and Ms Nelson, and the solicitor named as a second defendant in the constructive trust proceeding, Mr Peter Neumegen.

[4] In May 2000 Ms Nelson and Mr Gibson each contributed $200,000 to purchase a property in Maryland Street, Auckland (the Maryland property). They had previously been living in a property in Point Chevalier owned by the Gibbos Trust, the trustees of which are the second defendants named in the constructive trust proceeding.

[5] The Gibbos Trust is a trust associated with Mr Gibson. There is an issue between the parties as to whether Ms Nelson is also a beneficiary – the list of beneficiaries includes any “future wife” of Mr Gibson, but Ms Nelson and Mr Gibson never married.

[6] In or about October 2006, the Maryland property was transferred to the Gibbos Trust. Ms Nelson received no payment on the transfer, and she says she is unsure what the purpose of the transfer was.

[7] When Ms Nelson and Mr Gibson commenced their relationship, Mr Gibson operated a company called Explorer Bus Limited (Explorer), which is the third defendant in the constructive trust proceeding. The Gibbos Trust owns 99 per cent of the shares in Explorer,…

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 Nelson v Gibson

Details

AGLC: Nelson v Gibson [2017] NZHC 2715
Case: [2017] NZHC 2715
Decision Date: 6 November 2017

CaseChat Overview and Summary

Raewyn Ann Nelson is the applicant in an application for orders under the Property (Relationships) Act 1976 (PRA proceeding) and also the plaintiff in a civil proceeding (constructive trust proceeding). Both proceedings were originally commenced in the Family Court but were subsequently transferred to the High Court of New Zealand. Nelson seeks an order for particular discovery against Mark Colin Gibson, and against the other defendants named in the constructive trust proceeding. Nelson and Gibson are former partners in a de facto relationship which began in or about August 1995 and ended in September 2014. They have one child together. Nelson seeks documents showing the detail of all relevant property transactions conducted by Gibson, the Gibbos Trust, or Explorer, which may show the use by them of relationship property. Nelson contends that her contributions, whether in cash, unpaid work for Explorer, or her domestic contributions, entitle her to claim a one-half beneficial interest in the various assets of Gibson, the Gibbos Trust, and Explorer. Nelson has applied for an order for particular discovery of certain documents. Gibson has opposed the application. The court considered the application under rule 8.19 of the High Court Rules. The court held that the application for particular discovery should be granted in respect of the documents in categories 1 – 4 and 7 of Nelson's application. The application was adjourned in respect of the documents relating to post-separation acquisitions by Gibson or any of the other defendants in the constructive trust proceeding, as Gibson has said he will be providing these documents voluntarily, in the interests of "transparency". The application will be adjourned in respect of that subcategory of category 8 documents, on the same basis as that set out above in respect of the category 6 documents. The court made orders for particular discovery against Gibson and the defendants in the constructive trust proceeding in respect of the documents in categories 1 – 4 and 7 of Nelson's application. The application for particular discovery of documents relating to post-separation acquisitions of properties by Gibson or any of the other defendants in the constructive trust proceeding was adjourned, with leave reserved to Nelson to apply by memorandum, on five working days’ notice, to have that part of her application brought back on for hearing if necessary. Costs were awarded to Nelson on a 2B basis, with disbursements as fixed by the registrar.

Orders