Patterson v Davison - [2012] NZHC 2757

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…

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 Patterson v Davison

Details

AGLC: Patterson v Davison [2012] NZHC 2757
Case: [2012] NZHC 2757
Decision Date: 19 October 2012

CaseChat Overview and Summary

The appeal in Patterson v Davison was heard by His Honour Justice Heath in the High Court of New Zealand. Ian Patterson, the sole director of Terson Holdings Ltd, appealed against a restraining order made by Judge Geoghegan in the Family Court at Tauranga. The order was made under section 43 of the Property (Relationships) Act 1976 and restrained the completion of the sale of a commercial building in Auckland by Terson to an arm’s length third party. The appeal was determined on the basis that the evidence did not support an inference 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. The appeal was allowed, and the restraining order was set aside. The court also dismissed the cross-appeal and awarded costs to Mr Patterson and the Trust (jointly), on a 2B basis together with disbursements, both to be fixed by the Registrar.

Orders