Olliver v Sparks - [2022] NZHC 622

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-1890

[2022] NZHC 622

UNDER s 182 of the Family Proceedings Act 1980

BETWEEN

GREGORY MARTIN OLLIVER

Plaintiff

AND

SARAH PATRICIA SPARKS

First Defendant

GLOVER NO 2 LIMITED (as trustee of the GLOVER NO 2 TRUST)

Second Defendant

Cont/…

Hearing: 17 March 2022

Appearances:

PJK Spring and O Mines for Mr Olliver

SP Sparks, First Defendant in CIV-2020-404-1890, in person Appearance for Glover No.2 Limited (as trustee of the Glover No.2 Trust) excused

Judgment:

30 March 2022

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 30 March 2022 at 4.30pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Keegan Alexander, Auckland Shieff Angland, Auckland

Copy to: Sarah Sparks

OLLIVER v SPARKS [2022] NZHC 622 [30 March 2022]

CIV-2020-404-1149

UNDERPart 19 of the High Court Rules an application under the Trusts Act 2019 and in equity

IN THE MATTER of the GLOVER NO.2 TRUST BETWEEN GREGORY MARTIN OLLIVER
Plaintiff

ANDGLOVER NO.2 LIMITED (as trustee of the GLOVER NO.2 TRUST)
Defendant

Introduction

[1] Mr Olliver has brought proceedings pursuant to s 182 of the Family Proceedings Act 1980 which allows the Court to vary the terms of a nuptial settlement if the parties’ marriage or civil union ends. Usually, s 182 cases relate to settlements imposed via a trust but they can involve settlements vesting property in a spouse or gifting a spouse an annuity.

[2] Here the funds being claimed by the plaintiff are funds of approximately $1.9 million owed to the Glover No.2 Trust, a trust associated with Ms Sparks, the plaintiff’s former wife. The funds are payable to the trust following a distribution from CIT Holdings Ltd (in liquidation). Mr Olliver alleges that the arrangements resulting in this distribution constitute nuptial settlements for the purposes of s 182 and that it is just and reasonable that the distribution be paid to him in its entirety.

[3] The $1.9 million distribution is currently being held in a solicitors’ trust account pending determination of Mr Olliver’s claim following orders being made by consent resolving Mr Olliver’s application for freezing orders.

[4] The ten-day substantive hearing of Mr Olliver’s claim is scheduled to commence on 18 July 2022.

[5] In my Minute dated 14 December 2021 I made interlocutory orders including orders:

(a)for additional tailored discovery requiring Mr Olliver to discover documents relating to his current financial circumstances;

(b)for the release of $1,500 from the funds held on trust to pay the legal fees of the trustee for completing discovery; and

(c)declining Mr Olliver’s application for the children to be served with certain documents in the proceeding to allow them to take legal advice and consider their position in respect of the proceedings.

[6] Discovery orders had been delayed to allow the parties to attempt to reach a settlement. Orders were made for tailored discovery of certain categories in my Minute dated 20 September 2021.…

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 Olliver v Sparks

Details

AGLC: Olliver v Sparks [2022] NZHC 622
Case: [2022] NZHC 622
Decision Date: 30 March 2022

CaseChat Overview and Summary

The plaintiff, Gregory Martin Olliver, applied for leave to appeal an interlocutory order made by the Associate Judge. The order required Mr Olliver to make tailored discovery of documents relating to his current financial circumstances and for $1,500 to be released from the funds held on trust for payment of the trustee’s legal fees for discovery. The order also declined Mr Olliver’s application for the children to be served with certain documents in the proceeding. The substantive hearing of Mr Olliver’s claim is scheduled to commence on 18 July 2022.

The Court found that the application for leave to appeal should be declined. The high threshold for leave was not met, as there was no arguable error of law or fact of sufficient importance to warrant the delay that would result from an appeal. The application for leave was made so close to the date of the substantive hearing that it would likely result in abandonment of the fixture. It was also unlikely that any decision on appeal would be of general or public importance.

The Court made directions to ensure that discovery is completed sufficiently in advance of the substantive fixture. The parties were given three weeks by which to file and serve affidavits of documents falling within the tailored discovery categories. The legal fees of $1,500 for the trustees to complete discovery were to be released to enable the trustee to comply with the deadline. The substantive hearing of these proceedings is to commence on 18 July 2022 at 10am.

Orders