Patterson v Davison
[2012] NZHC 2757
•19 October 2012
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 TAURANGA REGISTRY
CIV 2012-470-572 [2012] NZHC 2757
UNDER the Property (Relationships) Act 1976
BETWEEN IAN ADRIAN PATTERSON Appellant
ANDCLAIRE HELEN DAVISON First Respondent
ANDIAN ADRIAN PATTERSON AND GRAHAM MAXWELL DRURY AS TRUSTEES OF THE IAN PATTERSON (NO. 2) TRUST
Second Respondents
Hearing: 26 September 2012
Counsel: A Brown and T K Marshall for Appellant
B R Pidwell for First Respondent
E J Hudson for Second Respondents
Judgment: 19 October 2012
JUDGMENT OF HEATH J
This judgment was delivered by me on 19 October 2012 at 4.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
PATTERSON V DAVISON HC TAU CIV 2012-470-572 [19 October 2012]
The appeal
[1] Mr Patterson appeals against a restraining order made on 20 July 2012 by Judge Geoghegan, in the Family Court at Tauranga, in relationship property proceedings.1 The order was made under s 43 of the Property (Relationships) Act
1976 (the Act).2 It restrained a non-party, Terson Holdings Ltd (Terson), from
completing the sale of a commercial building in Auckland to an arm’s length third party. By agreement among the parties, the sale did proceed and the net proceeds of sale are held by the Registrar, pending determination of this appeal.
[2] Mr Patterson is the sole director of Terson. The order was made during the course of a substantive defended hearing of the relationship property disputes between Mr Patterson and his former wife, Ms Davison. The order was designed to protect Ms Davison’s interests pending completion of the hearing and delivery of a reserved judgment. One of the issues in that proceeding is the extent of Ms Davison’s interest in the shares of Terson.
[3] Mr Patterson and the trustees of the Ian Patterson (No. 2) Trust (Mr Patterson and Mr Drury) hold, between them, 80% of the share capital of Terson. On the company records, Ms Davison has a 20% interest. Part of her argument, in the Family Court, is that an additional cash contribution that she made during the marriage increased her shareholding to 33%. Other aspects of the proceeding involve claims under ss 44 and 44C of the Act and s 182 of the Family Proceedings Act 1980.
[4] Judge Geoghegan has now completed the substantive hearing. Judgment remains reserved. Nevertheless, this appeal is not moot because, if Mr Patterson
were successful, the money could be released immediately to Terson.
1 CHD v IAP [2012] NZFC 5370.
2 The material part of which is set out at para [29] below.
Background facts3
[5] The Ian Patterson (No. 2) Trust (the Trust) was established in May 1991 by Mr Patterson’s mother. While, at that time, no assets were settled on the Trust, Mr Patterson was the named beneficiary, together with any current or future wife, his children, and their partners. At the time the Trust was settled, Mr Patterson and Ms Davison were not in any form of relationship.
[6] In May 1998, Mr Patterson and Ms Davison began to live together in a de facto relationship. They married on 29 April 1999 and separated on 21 September
2007. For relationship property purposes, they were in a qualifying relationship for about 9 years and 6 months.
[7] Mr Patterson’s mother died in September 1998. Mr Patterson was the sole beneficiary of her estate, which comprised assets valued at approximately $1 million. Mr Patterson’s interests in those assets were transferred to the Trust, in February
1999.
[8] Mr Patterson arranged for Terson to be incorporated in September 2002. The company was used as a means by which his commercial property investments could be held and managed. Ms Davison invested $100,000 in Terson and, in return, was allocated 20% of the share capital.
[9] Ms Davison alleges that in June 2003 she advanced a further sum of
$100,000 to Terson. That contribution to capital has not been recognised by the allocation of shares. Nor, I understand, is it reflected in a debt owed by Terson to Ms Davison. As a result, Ms Davison contends that her contribution should have resulted in an increase in her shareholding to 33%.
[10] In May 2012, Terson agreed to sell a commercial building at James Fletcher Drive in Auckland to its tenant; an arm’s length third party. There is no dispute about the market value of the sale. Nor is there any dispute that Ms Davison was not
consulted about the proposed sale. After evidence had been given about it during the
3 Much of the background information under this heading is taken from the decision under appeal.
substantive hearing,4 Ms Davison applied to restrain Terson from completing that sale. She did so on the grounds that it was being effected to defeat the claim that she was making under the Act.5
The application
[11] Judge Geoghegan had heard two days of evidence before it was necessary to adjourn because of Ms Davison’s senior counsel’s inability to continue due to the illness of a close family member. The hearing was adjourned part-heard until 18
June 2012.
[12] In a ruling given at the conclusion of that particular hearing, the Judge recorded that Ms Davison had filed an application for a restraining order in respect of the James Fletcher Drive property. He considered that it was appropriate that the parties have an opportunity to have those arguments considered by the Court before
any order was made.6 Directions were made for the filing and service of affidavits in
support and opposition to the application, together with written submissions.
[13] The application under s 43 sought an order that the disposition of Terson’s property, due to be made on 31 July 2012 for the sum of $1,750,000, be restrained on the grounds that it was being made at the direction of Mr Patterson in order to defeat Ms Davison’s claims or rights under the Act. The specific grounds on which the application was made were:
1.[Mr Patterson], as Director of Terson holdings Limited, has entered into an Agreement for Sale and Purchase of Real Estate dated 2 May
2012 to sell the property at 186 James Fletcher Drive, Otahuhu, Auckland, to Cock and Bull Properties Limited, for an amount of
$1,750,000.
2. Settlement of the sale is scheduled for 31 July 2012.
3.That after repayment of the mortgage secured over the property, legal costs associated with sale, commission payable to Bayleys Real Estate Limited, the net proceeds of sale should be paid into Court to be held until settlement of relationship property division between the parties.
4 The relevant evidence is set out at paras [15] and [16] below.
5 Property (Relationships) Act 1976, s 43(1).
6 CHD v IAP [2012] NZFC 3801 (16 May 2012).
[14] The affidavit sworn by Ms Davison in support of the application evidenced a lack of consultation with her about the proposed sale, outlined her desire to retain the commercial building as part of the relationship property settlement and identified a number of “bad financial decisions” made by Mr Patterson that had dissipated property otherwise available for distribution. On the latter topic, she continued:
11. ... I am extremely concerned that if [Mr Patterson] has access to the settlement funds on 31 July 2012 they will be spent by him, or transferred to overseas accounts that I will not be able to access, or will have great difficulty in accessing, such as the Lloyds account and Macquarie accounts. This will have the effect of defeating my claim.
12.[Mr Patterson] has recently offered to pay me 20% of the net proceeds of sale of the James Fletcher property. This is not fair. This money may be the only cash available to meet my claim, which I have quantified at in excess of $2,000,000. I have declined the offer. I seek that the full net proceeds be held undisbursed until our relationship property division is resolved.
[15] In his affidavit in opposition to the application for a restraining order, Mr
Patterson deposed that:
(a) There had been a “flippant” discussion between Ms Davison and himself about the possibility that she might want to acquire the James Fletcher Drive property. Nothing was ever put in writing by her solicitor to that effect. Mr Patterson did not consider that his former wife had the financial resources to acquire 80% of the value of the property.
(b)He did not consult Ms Davison about the proposed sale because she had “previously interfered with other transactions in spite”. He referred to Ms Davison’s retention of a notice of claim against two properties owned by the Trust and to alleged steps taken by her to harass him and to cause the Commissioner of Inland Revenue to carry out an investigation into his affairs. In those circumstances, Mr Patterson said:
I simply did not trust her motives in allowing a sale to a
willing buyer at arm’s length for commercial value and
sincerely believe that if she had prior knowledge she would have compromised the sale.
(c) There were other assets available to protect any interest that Ms Davison might be found to have. Mr Patterson referred to two properties owned by the Trust against which notices of claim had been lodged; one at Omokoroa with a net value of about $500,000 and another at Berescourt, also with a net value of about $500,000.
[16] Mr Patterson was cross-examined on this topic during his evidence at the substantive hearing. The following extracts from the evidence will suffice:
Q. ... And coming onto the sale of the Fletcher Building, [Ms Davison]
is a 20% shareholder of Terson isn’t she?
A. Yes.
Q. On your – in terms of registration and you knew that she was saying that the value of Terson was about two million?
A. Who was saying that? Q. [Ms Davison].
A. Was saying?
Q. yes, you knew that that was her evidence, that the value of Terson was about two million?
A. [Ms Davison] is not an expert.
Q. No, I’m not suggesting that but you knew that that was what she was
saying?
A. Well you said that yourself.
Q. And you knew that one of her suggestions was that she might take
Terson herself didn’t you?
A. That was suggested.
Q. Did you consider that you had a duty as a director of Terson or even just as [Ms Davison’s] ex-husband to mention that you were intending to sell the Fletcher building?
A. I certainly considered it.
Q. She might have wanted to buy it at the same price that you have purported to sell it at?
A. She might have.
Q. But she didn’t get the opportunity?
A. No.
Q. You decided it was better just not to say anything to her about it until after it was sold?
A. I didn’t know it was going to be sold when we started the sales
process.
Q. But you signed the agreement, you signed it? A. I signed it.
Q. And then you sent it to your lawyer and subsequently that was sent through to [Ms Davison’s] lawyer?
A. Yes.
Q. So you could, before you signed the agreement, have said, “Here is the proposal. You’re a 20% shareholder. Do you want to do anything about this or have any input into the sale?”
A. I could’ve said that.
Q. Was the other trustee consulted, before you signed the agreement? A. Yes, he was.
Q. Is there is a resolution of the trustees to sell the property?
A. Only in as far as my co-trustee, we discussed it at length and he agreed with my view that it should be sold.
....
Q. Do you agree to the net proceeds of the Fletcher drive property being held in your solicitor’s trust account on an interest bearing deposit, until final resolution of this matter?
A. No.
Q. What plans do you have with that money that belongs to Terson
Holdings, Mr Patterson?
A. Apart from paying some legal fees, none.
Q. So you intend, therefore, that it be placed on a term deposit? A. Not necessarily.
Q. Might you put it, for example, into something like your Summit investment?
A. I hope not.
Q. Is it not fair, Mr Patterson, that Ms Davison have some security in terms of what is going to happen to that money?
A. I believe she has an interest in what happens to some portion of that money.
Q. Do you accept that you’ve made a number of investments over the last – over the period just before the separation, that went very badly awry?
A. I do.
The Family Court’s decision
[17] While the application for the restraining order was made during the course of the substantive hearing of Ms Davison’s relationship property application, the Judge directed, on 18 May 2012, that a formal application and affidavit in support be filed.7
After all relevant papers had been filed by the parties, Judge Geoghegan determined it on the papers.
[18] The written application sought a restraining order or, alternatively, an injunction to prohibit distribution of the proceeds of sale of the commercial building that was owned by Terson. At that time, settlement was due to be effected on 31 July
2012. Mr Patterson had given an undertaking to the Court not to advance the settlement date.8
[19] Judge Geoghegan gave judgment on the restraining order application on 20
July 2012. He identified the date on which the agreement for sale and purchase was entered into as 2 May 2012, less than two weeks before the commencement of the substantive hearing. After referring to the terms of s 43(1) of the Act,9 and the submissions made by counsel for the three parties, Judge Geoghegan found:
(a) There was sufficient evidence that the Trust wished to deal with the funds received from the sale of the commercial building “sooner
rather than later” to ensure it could do so under the same market
7 CHD v IAP [2012] NZFC 3801 at para [7].
8 Ibid, at para [4] and [6].
9 Set out at para [13] below.
conditions as existed at the time of sale. Thus, a relevant disposition of property was about to be made.10
(b)Section 43, a provision designed to preserve property that is the subject of a claim by another party under the Act, empowered the Court to make orders restraining a proposed disposition of property by a company over which a partner to the relationship held decision- making power. The Judge considered that “the Court should take a practical view of the matter which recognises the reality of the position”, rather than treating such an intended disposition as one that had “not been made by a [partner] but rather by a company to a third party”. The latter position was described by the Judge as “technically
correct”.11
(c) It was unnecessary for Ms Davison to prove an intention on the part of Mr Patterson to defeat her interests. Judge Geoghegan considered that the Supreme Court’s decision in Regal Castings Ltd v Lightbody,12 under (what he saw as) the analogous provisions of s 60 of the Property Law Act 1952, justified that view. Applying that authority Judge Geoghegan held that an “intention to hinder, delay or defeat” her rights was sufficient.13
[20] The Judge considered whether the evidence was sufficient to meet the Regal
Castings test. He said:
[9] ... It is submitted on behalf of Ms Davison that the following factors support the drawing of an inference as to an intention to defeat [Mr Patterson’s] claim:
(a) The sale of the commercial property without reference to
[Ms Davison].
(b) Mr Patterson’s admission in cross-examination that he had recently offered another property in dispute in the
10 CHD v IAP [2012] NZFC 5370 at para [7].
11 Ibid, at para [8].
12 Regal Castings Ltd v Lightbody [2009] 2 NZLR 433 (SC).
13 CHD v IAP [2012] NZFC 5370, at para [9].
proceedings to the tenant of the property without reference to Ms Davison.
(c) That the former family home at Omokoroa (on the face of it owned by [the trustees of the Trust] is being marketed for sale, again without consultation with the applicant.
(d) That it is clear from [Mr Patterson’s] evidence that he views
[Ms Davison’s] claims as minimal or non-existent.
(e) That Ms Davison was required to make application to the Court for an interim distribution of property as [Mr Patterson] was unwilling to make any payments.
[10] As to the actual defeating of the claim by Ms Davison, Ms
Hinton QC [for Ms Davison] refers to the following matters:
(a) That [Ms Davison] has made a claim to a 33% shareholding in Terson Holdings Limited.
(b) That [Ms Davison] has made substantial claims against [the trustees of the Trust], including under ss 44 and 44C of the Act.
(c) That [Ms Davison’s] total claim was $2 million approximately and that there is insufficient security in the two properties owned by [the trustees of the Trust] in respect of which [Ms Davison] has registered notices of claim to satisfy her claims.
...
[14] I ... consider whether or not it could be said that a disposition is about to be made in order to defeat Ms Davison’s claim under the Act. In that regard I refer to the matters referred to by counsel for Ms Davison and to which I have already made reference in this judgment, at paragraph [9]. I would add the following however:
(a) The evidence before the Court establishes that at no time during the course of the relationship between the parties was there any significant or meaningful consultation by Mr Patterson with Ms Davison in respect of property matters. Mr Patterson has effectively regarded most of the property in dispute in these proceedings as property other than relationship property whether that be separate property or the property of the Trust.
(b) Shortly after Ms Davison was appointed as a director of Terson Holdings Limited she was removed as a director without her knowledge. While Mr Patterson has referred to the appointment having been a clerical error it is indicative once again of his views regarding Ms Davison’s role in financial matters.
....
Counsel agreed that the last observation was an error. Ms Davison has never been a director of Terson. While she had been removed as a director from a different company, I consider that, because that entity had no connection to Terson, evidence of that removal has no probative value.
[21] Judge Geoghegan drew support for his view that the transaction could be restrained from a judgment of Judge Ullrich QC, in Vaughan v Marsden.14 That case involved a property owned by trustees of a family trust established by the husband, against whom the wife bought her claim. Both parties had accepted that an order could be made restraining disposition of such property and that the s 43 jurisdiction was not limited to relationship property. Thus, without any argument on the
jurisdictional point, Judge Ullrich made a restraining order.
[22] Given the outcome of the restraining order application, Judge Geoghegan considered it unnecessary to determine an (alternative) application for an interim injunction separately. He did indicate, however, that, for discretionary reasons relating to non-compliance with “very clear timetabling directions” (for the substantive proceeding), he would have been reluctant to have granted an injunction.15
The competing contentions
[23] Ms Brown, for Mr Patterson, submits that the Judge erred because:
(a) He was wrong to hold that a relevant “disposition” of property was about to be made.
(b) There was no jurisdiction under s 43 to restrain disposition of the
company’s asset,
14 Vaughan v Marsden FC Porirua FAM 2006-091-514, 16 October 2006.
15 CHD v IAP [2012] NZFC 5370 at para [17].
(c) He failed to give consideration to the merits of Ms Davison’s claim in determining whether her claims were being defeated by the proposed transaction,
(d)He applied the wrong test and incorrectly held that the particular dispositions were intended to defeat Ms Davison’s claims.
[24] On a cross-appeal, supporting Mr Patterson’s, Mr Hudson, for the Trust, submitted that the Judge erred in applying the Regal Castings test in preference to an earlier decision of the Court of Appeal in Coles v Coles.16 He contended that Coles remained binding on the Family Court, in relation to s 43 applications, notwithstanding the Supreme Court’s decision in Regal Castings.
[25] Mr Hudson also submitted that an undertaking as to damages ought to have been given before any orders were made.
[26] Ms Pidwell, for Ms Davison, supported the Judge’s decision for the reasons he gave. She drew attention to the circumstances in which it is appropriate for this Court to interfere with a Family Court decision, particularly one involving the exercise of a discretion and given in the context of a hearing during which the Family Court Judge had the advantage of hearing and seeing the witnesses give
evidence.17
[27] Ms Pidwell submitted that Ryan v Unkovich correctly stated the legal position. She adopted what French J had said, in the context of s 44 of the Act:18
[21] Although “disposition” is not defined in the Act, it has been given a wide meaning and must, in my view, encompass the execution of a deed of nomination. As counsel for Mr Unkovich, Ms McCartney, also pointed out, the express wording of s 44 makes it clear it is not necessary for the property to have been owned by Ms Ryan in her personal capacity. It is sufficient if Mr Unkovich is able to show the disposition was “by, or on behalf of, or by
16 Coles v Coles (1988) 4 NZFLR 621 (CA) at 624. Necessarily, Mr Hudson’s argument suggested that French J’s judgment in Ryan v Unkovich [2010] 1 NZLR 434 (HC), which followed Regal Castings, ought not to be followed and that White J’s subsequent decision of this Court, in Nguy v Leigh HC Auckland CIV 2009-404-2160, 9 December 2009, applying Coles, ought to be.
17 Ms Pidwell referred to Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) and DMO v HAS HC Hamilton CIV 2009-419-566, 12 August 2009 (Heath J). See also Kacem v Bashir [2011] 2 NZLR 1 (SC).
18 Ryan v Unkovich [2010] 1 NZLR 434 (HC).
direction of, or in the interests” of Ms Ryan. There is sufficient material before the Court which makes that proposition arguable. It is a matter of evidence and not a ground for strike-out.
Analysis
[28] I approach the appeal on the basis submitted by Ms Pidwell.19 As it is necessary to deal with the appeal promptly, I do not propose to refer to all arguments advanced. Nor do I determine all of the issues raised. Instead, I determine the appeal based on my own analysis of s 43(1).
[29] The starting point is s 43(1) of the Act:
43 Dispositions may be restrained
(1) Where it appears to the High Court or a District Court or a Family Court that any disposition of property is about to be made, whether for value or not, by or on behalf of or by direction of or in the interests of any person in order to defeat the claim or rights of any other person (party B) under this Act, the Court may, … on such notice being given as the Court may direct, by order restrain the making of the disposition or may order any proceeds of the disposition to be paid into Court to be dealt with as the Court directs.
...
(Emphasis added)
[30] The first issue concerns the jurisdictional prerequisites to the exercise of the Court’s discretion to make a restraining order. While argument tended to focus on component parts of s 43(1), it is necessary to consider it as a whole. In the context of this case, jurisdiction to make an order existed if it appeared to the Family Court that a disposition of property was about to be made at the direction of a person, in order to defeat the claim or rights of another under the Act. As the order sought is in the nature of interim relief, the existence of a seriously arguable case to that effect
would suffice.20
[31] The purpose of the provision is, plainly, to prevent dissipation of assets to the detriment of a person with a claim under the Act. In that sense, it can be seen as
19 See para [26] above.
20 Compare with the position on an interim injunction application: Klissers Farmhouse Bakeries
Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142.
fulfilling the same function as a notice of claim that may be registered against land to prevent a party from dealing with it in a manner adverse to a claimant.21 Such notices of claim, which have effect as if they were a caveat lodged against the land, are restricted to land to which a claimant asserts an interest.
[32] The notice of claim procedure conferred by s 42 is one of three provisions (including s 43) that appear under the subheading “Protection of spouses’ or partners’ rights”. The remaining one is s 44, which is designed to enable the Court to declare void a disposition that had already been made “in order to defeat” the claimant’s rights.
[33] While it is clear that Ms Davison has no interest in Terson’s commercial building (as distinct from its shares) that could have given rise to a notice of claim, s 43(1) is expressed more generally and is directed to any disposition of property designed to defeat the claim or rights of any other person. Disposition of a company asset, at the direction of a spouse who has the ability to control the company’s operations ( in the absence of an exchange for market value) is likely to reduce the value of the shares claimed as relationship property.
[34] In Coles v Coles, the Court of Appeal considered the approach to be taken to s 44 of (what was then known as) the Matrimonial Property Act 1976. The Court emphasised that expressions such as “with intent to”, “with a view to”, or “for the purpose of” had given rise to much discussion about perceived the differences between purpose and motivation. The Court considered that judgments dealing with
such tests “must always be considered against their various statutory backgrounds”.22
Delivering the judgment of the Court of Appeal, McMullin J said:23
... What is plain is that the words “in order to defeat” [in s 44] mean that the spouse who entered into the challenged transaction did so because of a conscious desire to remove some item or items of matrimonial property from the reach of the courts. It must be shown that such was the aim or object of the transaction; the end which the transaction was intended to achieve. The onus of proving that a spouse acted “in order to defeat” the claim of the other spouse may be discharged by direct evidence of a state of mind or by necessary inference from all the circumstances. In the present case the
21 Property (Relationships) Act 1976, s 42.
22 Coles v Coles (1988) 4 NZFLR 621 at 624.
23 Ibid.
Court must be satisfied that Mr Coles adopted the company/trust structure as a means to achieve the end of putting the property involved beyond the reach of his wife. In the light of the finding that Mr Coles was motivated by no more than the desire of many farmers in his situation to save duty on his estate and to benefit his children (for which there is abundant evidence), the first ground of appeal must fail.
[35] Regal Castings Ltd v Lightbody is a decision of our Supreme Court which involved consideration of s 60 of the Property Law Act 1952, in the context of an allegation that property had been put beyond the reach of creditors.24 The Supreme Court considered whether the threshold test of proof of an “alienation of property with intent to defraud creditors” had been established. That involved the Court reviewing previous authorities dealing with the interpretation of the term “defraud”
in that context. The Court held that it was not necessary to prove an actual intent to defraud; a voluntary settlement having the effect of defeating or delaying creditors was sufficient to meet the statutory test. Whether it does so is a question of fact.25
[36] Ryan v Unkovich26 was the first decision of this Court to consider s 44 in light of the Supreme Court’s decision in Regal Castings. At the commencement of her judgment, French J referred to s 44(1) which, relevantly, describes a qualifying disposition as one that is:27
. . . made . . . by or on behalf of or by direction of or in the interests of any person in order to defeat the claim or rights of any person (party B) under this Act . . .
[37] In considering the applicability of the Regal Castings test, French J said:
[33] Regal Castings was not a case about relationship property. The Supreme Court did not consider s 44, and it did not consider Coles. Regal Castings was concerned with the interpretation of s 60 of the Property Law Act 1952 and the meaning of the phrase “intent to defraud” in the context of a debtor/creditor relationship. However, the phrase “intent to defraud” was described by the Court at para [52] as a shorthand expression for “intent to hinder, delay or defeat”. Further, I accept the principles enunciated in Regal Castings are sufficiently general to apply to s 44. In particular, I accept that in so far as the Coles formula fails to distinguish between intention and motive, it is contrary to the reasoning of the Supreme Court and should not
24 Section 60 has now been repealed and replaced by s 346 of the Property Law Act 2007.
25 Regal Castings ltd v Lightbody [2009] 2 NZLR 433 (SC) at para [13] (Elias CJ0, paras [52]–[56] (Blanchard and Wilson JJ), [126]–[127] (Tipping J) and [192]–[194] (McGrath J).
26 Ryan v Unkovich [2010] 1 NZLR 434 (HC).
27 Ibid, at para [1].
be followed. Knowledge of a consequence can be equated with an intention to bring it about.
[38] Although Mr Hudson was critical of an approach that, in effect, declined to follow (what he termed as) a binding decision of the Court of Appeal, it seems to me that French J’s view was that Coles had been implicitly overruled by the Supreme Court in Regal Castings, to the extent that Coles fails to distinguish between intention and motive.28 I agree with her view but I am far from convinced there has been any other material change in the law. Regal Castings equates “intent to defraud” with “intent to defeat”.29 “Intent to defeat” is the s 43(1) test. In that sense, while Regal Castings must prevail, I do not see any real difference between the test enunciated in that case and in Coles. In the latter, the Court of Appeal emphasised the need for contextual analysis, when determining whether to draw an appropriate inference about a person’s intentions, in the absence of (accepted) direct evidence on the point.30 Regal Castings does not mandate any different approach.
[39] While it is important to bear in mind that s 43 involves a predictive assessment of an intent to defeat, the nature of the test does not differ, depending on whether one is looking into the future (s 43) or undertaking an historical assessment of what occurred (s 44). An intention to defeat can only be inferred from the totality of evidence, if denied by the person who is to make (or has made) the disposition. The only substantive difference is that it is inherent in any predictive test that an assessment of the arguability of the existence of such intent must be made.
[40] I have already set out the basis on which Judge Geoghegan concluded that a restraining order should be made.31 Distilling his reasons to their essence, I apprehend that His Honour drew an inference of an intention to defeat Ms Davison’s
rights or claims from the following facts:32
28 See para [37] above.
29 See para [35] above.
30 See para [34] above.
31 See paras [19] and [20] above.
32 I deliberately leave to one side the Judge’s reliance on Mr Patterson having removed Ms Davison as a director of Terson without her knowledge as it is now agreed that was not correct, as a matter of fact. See para [20] above.
(a) The lack of consultation by Mr Patterson with Ms Davison, in relation to the proposed sale of the commercial property, together with an offer of another property to a tenant without reference to her.
(b)The former family home at Omokoroa was being marketed for sale without consultation with Ms Davison.
(c) Mr Patterson regarded Ms Davison’s claims as “minimal or non- existent” and had not been prepared to agree to an interim distribution of property.
[41] Going through those factors, I observe:
(a) While it would have been desirable for Mr Patterson to consult with Ms Davison about the proposed sale of the commercial property, he had no legal obligation to do so. Ms Davison was not a director of Terson. The asset itself was not an item of relationship property. Having said that, it would have been desirable for the topic of the sale to have been raised prior to the defended hearing as Mr Patterson’s failure to do that gives rise to some suspicions about his good faith.
(b)The fact that the sale was undertaken at market value is a factor militating against an order. In essence, to support an order, Ms Davison would need to demonstrate that Mr Patterson’s intention was to use the proceeds of sale for his own purposes, thereby deliberately reducing the value of her shares in the company, at whatever percentage that may ultimately be assessed. So far as the company position was concerned, one asset was simply exchanged for another of equivalent same value. Of itself, that does not suggest any intent to defeat the rights of a person with an interest in the shares of the company.
(c) While the Omokoroa property had been marketed for sale without Ms Davison’s consent, she has a notice of claim lodged against that property. Therefore, it cannot be sold without her consent.
(d)Mr Patterson’s belief about the extent of Ms Davison’s claims under the Act and his unwillingness to make any voluntary interim distribution of property, seems neutral at best. The Judge appears to have drawn an inference of bad faith against Mr Patterson from that evidence, without actually saying so.
[42] The other concern is that the Judge did not make any findings, even for the limited purpose of an interim relief application, on the merits of Ms Davison’s claim. It is difficult, on appeal from an interlocutory decision, for this Court to assess the merits of that claim for the purpose of deciding whether the inferences drawn about Mr Patterson’s intentions in directing Terson to sell the commercial building were available.
[43] On those facts, I consider the Judge erred in finding that Mr Patterson had the requisite intent to defeat Ms Davison’s interests by arranging for the sale of the commercial building owned by Terson. In approaching the appeal on that basis, I have assumed (in favour of Ms Davison) that it is open to issue a restraining order under s 43(1) in respect of a company asset over which a spouse or partner has control, for decision-making purposes. I have also assumed (again in favour of Ms Davison) that the absence of Terson as a party to the proceeding did not prevent an order being made. I am not to be taken as endorsing either of those propositions, which I leave open for further consideration in an appropriate case, if necessary.
[44] The simple point is that the evidence to which I have referred does no more than to lay a foundation for a suspicion that Mr Patterson might use the proceeds of sale of the commercial building in a manner that might deplete the value of the assets available to Terson, with the possible consequence of diminishing the value of the shares in Terson. That was not enough to justify an order.
[45] I add that Mr Patterson, exercising control over Terson as its director, would be foolish to make any distribution of the funds pending an imminent decision from the Family Court. Apart from questions about the appropriate date of valuation, there are wide-ranging remedies available under the Act to combat conduct of that type that is intended to prejudice a claimant’s interests.
Result
[46] For those reasons, the appeal is allowed. The restraining order is set aside. No relief is required on the cross-appeal. It is dismissed.
[47] Having succeeded on the appeal, Mr Patterson and the Trust are entitled to costs. However, their respective interests could have been advanced by one counsel. In those circumstances, I award one set of costs in favour of Mr Patterson and the Trust (jointly), on a 2B basis together with disbursements, both to be fixed by the
Registrar.
P R Heath J
Delivered at 4.00pm on 19 October 2012
Solicitors:
Holland Beckett, PO Box TaurangaCooney Lees Morgan, PO Box 143, Tauranga Nielsen Law, PO Box 1108, Hamilton Counsel:
A Brown, PO Box 13284, Tauranga
A E Hinton QC, PO Box 4092, Shortland Street, Auckland
E J Hudson, PO Box 19252, Hamilton
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