NJG v SS - [2013] NZHC 914

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 HTTP;// COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV2012-419-001405 [2013] NZHC 914

BETWEEN N J G Appellant

ANDS S Respondent

Hearing: 27 March 2013

Counsel: A M Cook and J F Briggs for the Appellant
A B Foster for the Respondent

Judgment: 30 April 2013

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 30 April 2013 at 11.30 am
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:
A Cook: angela@osheaslaw.co.nz
A Foster: andrew@fmlawyers.co.nz

G V S HC HAM CIV 2012-419-001405 [30 April 2013]

Introduction

[1] The appellant, G, appeals a decision of the Family Court at Hamilton, delivered on 11 September 2012, by Judge R H Riddell.1 The decision dealt with the division of relationship property between G and his former wife, S.

[2] The notice of appeal initially raised 10 grounds of appeal. One of these grounds was abandoned during the course of the hearing. The issues requiring resolution can be summarised as follows:

(a) Was the net equity arising from the family home gifted by G to S?;

(b)Should a debt secured of a motor vehicle sold in Malaysia have been treated as a personal debt of G?;

(c) Should a debt owing to the taxation authority in Malaysia have been treated as a personal debt of G?;

(d)Were advances made by G’s father to G and S a relationship debt and should G’s father’s evidence in regard to the advances have been disregarded by the Judge?;

(e) Were the sale proceeds of a home in Malaysia relationship property, and did Judge Riddell err in not making an allowance in favour of G in this regard?;

(f) Did the Judge fail to make proper allowance to G in respect of the division of his superannuation?;

(g)Should an allowance have been made for G for repayment of a hire purchase debt following separation?;

1 NJG v SS [2012] NZFC 7043.

(h)Should there have been an allowance in favour of G for unaccounted funds?

Factual Background

[3] G and S lived in Malaysia. They were married in a civil ceremony on

23 December 1995. On 24 February 1996, they had a traditional wedding and they started living together in or about July 1996.

[4] There was one child from the relationship, a daughter, born in August 1999.

[5] Both G and S are well educated. He has a Masters Degree in Physics, and she is a chartered accountant.

[6] G and S purchased a home in Malaysia that was registered in S’s name alone, as at the time she was more readily able to obtain a loan. Both parties acknowledged that this property was their joint property.

[7] In 2002, the couple moved to New Zealand. The property in Malaysia was rented out.

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 NJG v SS

Details

AGLC: NJG v SS [2013] NZHC 914
Case: [2013] NZHC 914
Decision Date: 30 April 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of NJG v SS involves an appeal by the appellant, NJG, against a decision of the Family Court at Hamilton, which was delivered on 11 September 2012, by Judge RH Riddell. The decision dealt with the division of relationship property between NJG and his former wife, SS. The key issues requiring resolution included whether the net equity arising from the sale of the family home was a gift from NJG to SS, whether certain debts should have been treated as personal debts of NJG, whether advances made by NJG’s father to the couple should be considered relationship debts, and whether the sale proceeds of a home in Malaysia should be treated as relationship property. The court had to decide if the Family Court judge correctly applied the law in making her findings and whether the judge erred in her interpretation of the evidence.

The court found that the Family Court judge was correct in her findings regarding the net equity from the sale of the family home, but erred in treating certain debts as personal debts of NJG. Specifically, the court held that the judge's decision to hold NJG solely responsible for a debt related to a motor vehicle and a tax debt in Malaysia was contrary to the Property (Relationships) Act 1976. The court also found that the Family Court judge erred in disregarding the evidence of NJG’s father regarding advances made to NJG and SS, which were intended to be repaid. Furthermore, the court determined that the net proceeds from the sale of the Malaysian property should be treated as relationship property, to be divided equally between the parties. The Family Court judge's decision not to consider interest on superannuation policies and the handling of a withdrawal from NJG’s superannuation policy were upheld. The court dismissed NJG’s claims regarding the repayment of a hire purchase debt and unaccounted funds, as NJG failed to provide sufficient evidence to support these claims.

The appeal was allowed in respect of the issues related to the motor vehicle debt, the tax debt in Malaysia, the advances made by NJG’s father, and the division of the Malaysian property proceeds. The case was remitted to the Family Court to reconsider the division of the parties’ relationship property in light of the judgment. The court suggested that costs should lie where they fall, but allowed time for the parties to submit written arguments on the issue of costs.

Orders