Palmer v Alalaakkola - [2021] NZHC 2330

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2020-406-5

[2021] NZHC 2330

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of an appeal against a decision of the District Court at Blenheim

BETWEEN

PAUL ANTHONY PALMER

Appellant

AND

SIRPA ELISE ALALAAKKOLA

Respondent

Hearing: 26 July 2021

Appearances:

B A Fletcher for Appellant

No appearance for Respondent

Judgment:

7 September 2021

JUDGMENT OF ISAC J

Introduction

[1] This appeal raises a novel question: is copyright in an artistic work relationship property? Ms Alalaakkola is a painter. During her 20-year marriage to Mr Palmer she created a number of original works. Now that they are separated, one of the issues the parties have been unable to resolve is the status of copyright in the paintings as relationship property. I have found that it is.

PALMER v ALALAAKKOLA [2021] NZHC 2330 [7 September 2021]

[2] In a judgment of 10 February 2020, the Family Court determined the division of relationship property,1 but reserved the issue of copyright in the artworks and occupational rent until a decision of 6 March 2020.2

[3] The 6 March decision found copyright in the artworks was Ms Alalaakola’s separate property. It also fixed occupational rent for the former family home at $300 per week.

[4]Mr Palmer appeals the 10 February and 6 March 2020 decisions. He says:

(a)copyright in the paintings created during the relationship is relationship property and should be divided equally between the parties;

(b)the paintings created during the relationship should also be divided equally between the parties;

(c)occupational rent be assessed at an appropriate figure; and

(d)that the directions as to the disposition and possible sale of the family home (made in the 10 February decision) should be cancelled and the home be placed on the open market to be sold by way of auction.

[5] Ms Alalaakkola was served with the notice of appeal and other related documents but did not take part in the appeal process or hearing.

Family Court decisions

10 February decision

[6] The Judge began by noting he was going to deal with the division of relationship property in two stages. That was because the evidence had been unsatisfactory given the two parties were incapable of co-operating with each other.3 Neither were represented by counsel, and it is evident from the irrelevant and at times

1      Alalaakkola v Palmer FAM-2017-006-00016, 10 February 2020.
2      Alalaakkola v Palmer [2020] NZFC 1635.
3      Alalaakkola v Palmer, above n 1, at [1].

inflammatory evidence they filed that the lack of representation was unfortunate. It has undoubtedly hampered the ability of the parties to reach a resolution for themselves.

[7] The Judge identified the scope of the relationship property,4 before noting that following separation Mr Palmer entered the former family home and removed a substantial number of Ms Alalaakkola’s artworks.5 The Judge also noted the existence of other artworks in Finland, where Ms Alalaakkola was born.6 He observed the situation relating to…

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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Details

Case: [2021] NZHC 2330
Decision Date: 7 September 2021

CaseChat Overview and Summary

The appeal in Palmer v Alalaakkola concerned the division of property between a former married couple. The parties had been married for 20 years and had separated in 2017. They had been unable to agree on the division of certain property, including copyright in artworks created by Ms Alalaakkola during the marriage. The appeal was against decisions of the District Court at Blenheim, which had determined the division of relationship property, but had reserved the issue of copyright in the artworks and occupational rent until a later decision. The appellant argued that the copyright in the paintings created during the relationship was relationship property and should be divided equally between the parties, and that the paintings should also be divided equally between the parties. He also sought to vary the amount of occupational rent assessed and to cancel the directions as to the disposition and possible sale of the family home.

The Court found that copyright in the paintings was relationship property and should be divided equally between the parties. The Court found that it was not open to the Judge to exercise a discretion on whether or not to transfer an interest in it to Mr Palmer, or indeed to allow an unequal division of that property. The Court also found that Mr Palmer was entitled to receive half the paintings by value created during the relationship. The Court declined to hear new evidence on the appropriate post-separation rental for the family home, as it was not fresh, cogent, credible or exceptional. The appeal was allowed in part and the proceedings were remitted to the Family Court in light of this Court’s findings regarding the copyright issue and the paintings created during the relationship.

Orders