IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1890
[2021] NZHC 220
UNDER
section 182 of the Family Proceedings Act 1980
BETWEEN
GREGORY MARTIN OLLIVER
Plaintiff
AND
SARAH PATRICIA SPARKS
First Defendant
GLOVER NO 2 TRUST LIMITED (as
trustee of Glover No 2 Trust) Second Defendant
Hearing:
12 November 2020
Counsel:
PJK Spring and HG Holmes for plaintiff LJ Kearns for first respondent
KJ Crossland for second respondent
Judgment:
19 February 2021
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 19 February 2021 at 11.30am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Keegan Alexander, Auckland
Lane Neave, Auckland (A Taggart) Shieff Angland, Auckland
OLLIVER v SPARKS [2021] NZHC 220 [19 February 2021]
Introduction
[1] On 30 June 2020, the plaintiff, Mr Olliver, commenced proceedings in the Family Court against his former wife, Ms Sparks, and Glover No. 2 Trust Ltd (Glover No. 2 Trustee) as trustee of a trust associated with Ms Sparks (the Glover No. 2 Trust). On 24 September 2020, and by consent, Mr Olliver’s proceedings were transferred to this Court in which related proceedings are in progress.
[2] Mr Olliver seeks relief pursuant to s 182 of the Family Proceedings Act 1980 (the Act). He says that arrangements surrounding monies due to the Glover No. 2 Trust from CIT Holdings Ltd (in liquidation) (the CIT Distribution) constitute a nuptial settlement for the purposes of s 182 of the Act. Mr Olliver seeks a resettlement of the CIT Distribution on him in its entirety. The amount in issue is approximately
$1.9 million.
[3] Ms Sparks applies to strike out and/or for a defendant’s summary judgment on Mr Olliver’s claim. She advances the following grounds in support of her application:
(a)First, it is not reasonably arguable that the arrangements relied on by Mr Olliver could give rise to a nuptial settlement.
(b)Second and in any event, it is no longer open to Mr Olliver to bring a s 182 claim, given his wholesale divestment in 2009 of any legal or beneficial interest in the trust assets which give rise to the CIT Distribution.
(c)Third, Mr Olliver failed to bring his s 182 claim within a “reasonable time” after dissolution of the parties’ marriage, as required by s 182(1) of the Act.
(d)Fourth, Mr Olliver’s s 182 claim could and should have been brought by him several years ago, and represents the latest in a series of attempts by him to gain control of the CIT Distribution. Ms Sparks says the
present proceedings are therefore vexatious and/or an abuse of process and ought to be struck out on Henderson v Henderson principles.1
[4]In light of the above, key issues for determination are:
(a)Whether the Court can be satisfied at this stage of the proceedings that it is not reasonably arguable that the arrangements relied on by Mr Olliver constitute a nuptial settlement for the purposes of s 182 of the Act…
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.
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Olliver v Sparks [2021] NZHC 220
Case
[2021] NZHC 220
Decision Date
CaseChat Overview and Summary
In the High Court of New Zealand, the case of Olliver v Sparks involved a dispute over the interpretation and application of section 182 of the Family Proceedings Act 1980. Mr Olliver sought relief under this section, claiming that certain arrangements surrounding monies due from CIT Holdings Ltd (in liquidation) to the Glover No. 2 Trust (the CIT Distribution) constituted a nuptial settlement. Ms Sparks sought to strike out or obtain a summary judgment against Mr Olliver’s claim, arguing that it was not reasonably arguable that the arrangements constituted a nuptial settlement, Mr Olliver had divested himself of any interest in the assets, the claim was brought outside of a reasonable time, and it was vexatious or an abuse of process. The court dismissed Ms Sparks’ application on all grounds. The court found that it was reasonably arguable that the arrangements could give rise to a nuptial settlement, Mr Olliver’s divestment of interests did not bar a claim under section 182, the delay in bringing the claim was not so significant as to warrant dismissal, and the claim was not vexatious or an abuse of process. The court ordered the parties to confer on costs and set a deadline for any amended pleadings before listing the matter for further steps.