Nygaard v Nygaard - [2025] NZHC 690

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER

INFORMATION, PLEASE SEE https:// court/after-the-family-court/restrictions-on-publishing-information/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2535

[2025] NZHC 690

BETWEEN
MONA NYGAARD

Appellant

AND

OSCAR NYGAARD

Respondent

Hearing: 12 March 2025

Appearances:

B Snedden, J Gandy and R Huang for Appellant J Hawker for Respondent

Judgment:

28 March 2025

JUDGMENT OF LANG J

[on appeal against orders made under the Property (Relationships) Act 1976]

This judgment was delivered by Justice Lang On 28 March 2925 at 3.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Totara Law/B Snedden, Auckland Haigh Lyon Lawyers Ltd, Auckland

NYGAARD v NYGAARD [2025] NZHC 690 [28 March 2025]

[1] This appeal concerns an ongoing dispute between Mr and Mrs Nygaard regarding the division of their relationship property under the Property (Relationships) Act 1976 (the Act).1 They had been in a relationship for approximately five years before they were married. They had then been married for more than 21 years when they separated in November 2020. They had a son who was 16 years of age at the date of separation.

[2] In February 2022 Mrs Nygaard issued proceedings in the Family Court to resolve issues that remained in dispute between herself and her husband. The proceeding was the subject of a four-day trial in the Family Court that commenced on 7 May 2024. Judge K Muir delivered a comprehensive decision on 4 October 2024.2 Mr Nygaard appeals against five aspects of the Judge’s decision. Mrs Nygaard cross- appeals against two aspects of the decision.

Overview

[3] The principal assets owned by the parties at the date of separation were the family home and a construction business operated by [ON] Construction Ltd, a company incorporated by Mr Nygaard (the company). The family home was owned by a trust of which Mr and Mrs Nygaard were the trustees and discretionary beneficiaries. Their son was the final beneficiary.

[4]The home was sold in April 2023 and realised the net sum of approximately

$3.13 million, some of which had been distributed to the parties by agreement prior to the hearing in the Family Court. Mr Nygaard received the sum of approximately
$668,000 whilst Mrs Nygaard received the sum of approximately $155,000. Mr Nygaard used some of the funds that he received to meet maintenance commitments he owed to Mrs Nygaard. The balance held on trust as at the date of the hearing was approximately $2.3 million.

[5] The company carried out construction work, principally in the field of residential renovations. Mr Nygaard was a builder by trade and was the sole director

1 I have used pseudonyms for the parties to correspond with those adopted by the Family Court.
2 Nygaard v Nygaard [2024] NZFC 6499.

and shareholder of the company. 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 Nygaard v Nygaard

Details

AGLC: Nygaard v Nygaard [2025] NZHC 690
Case: [2025] NZHC 690
Decision Date: 28 March 2025

CaseChat Overview and Summary

The appeal concerns the division of relationship property under the Property (Relationships) Act 1976 following the separation of Mr and Mrs Nygaard. The principal assets at issue were the family home and shares in a construction business operated by [ON] Construction Ltd. The appeal and cross-appeal primarily focus on the valuation of the shares in the construction company, the award of compensation under s 18C of the Act, and the distribution of household chattels, art works, and a clothing and shoe collection. The appeal was dismissed, while the cross-appeal was allowed in part.

The appeal centred on the valuation of the shares in the construction company as at the date of separation. The Judge valued the shares using a future maintainable earnings approach, finding that the company had significant value as at November 2020. The Judge rejected the argument that the shares should be valued on a net asset basis. The court found the Judge's valuation approach was appropriate, given the nature of the company's business and the value it still had as at the date of separation. The appeal against the valuation was therefore dismissed.

The court also considered whether the Judge erred in awarding compensation under s 18C of the Act. The Judge found that Mr Nygaard deliberately diminished the value of the company's shares by causing it to cease trading and moving to Australia with his new partner. The court upheld the Judge's finding that Mr Nygaard's actions were deliberate and intentional, justifying the award of compensation.

The court examined whether the Judge erred in making orders relating to the distribution of household chattels, art works, and a clothing and shoe collection. The Judge found that Mrs Nygaard had not taken any of these items from the family home and that Mr Nygaard had removed the clothing and shoe collection himself. The court upheld the Judge's findings on the distribution of these items.

Finally, the court addressed the cross-appeal concerning an order that Mrs Nygaard should receive occupation rent for the period Mr Nygaard occupied the family home after separation. The Judge had directed that Mrs Nygaard should receive half of the occupation rent from Mr Nygaard's share of the sale proceeds of the family home. The court found this to be an error and ordered that Mr Nygaard should pay the full occupation rent from his share of the sale proceeds.

Orders