Potter v Duffy - [2015] NZHC 2996

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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2014-470-131 [2015] NZHC 2996

BETWEEN
TERI ANNE POTTER

Plaintiff

AND

MARK FRANCIS DUFFY First Defendant

THE TRUSTEES OF THE DUFFY TRUST - being TERI ANNE POTTER, MARK FRANCIS DUFFY and LE PINE TRUSTEES LIMITED

Second Defendants

Hearing: 19 & 20 November 2015

Appearances:

E Eggleston for the Plaintiff
First Defendant in person
Second Defendants - appearances excused

Judgment:

27 November 2015

JUDGMENT (NO 2) OF MUIR J

This judgment was delivered by me on Friday 27 November 2015 at 5.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel: Solicitors:
E Eggleston, Barrister, Tauranga Holland Beckett Lawyers, Tauranga
Le Pine & Co (T Young/T Kirkham, Taupo for the
Trustees

Copy to: The First Defendant

POTTER v DUFFY [2015] NZHC 2996 [27 November 2015]

Introduction

[1] The plaintiff applies for orders dividing a limited pool of relationship property and devolving certain trust property (comprising principally an orchard and dwelling in which she and the first defendant have lived together, albeit separated, for an extended period) on two separate trusts. The second of these applications proceeds, alternatively, in the Court’s inherent jurisdiction and in a claim for specific performance arising out of Trust Deed provisions directed to what would occur in the event the parties’ relationship came to an end. She then seeks orders (alternatively in the Court’s inherent jurisdiction and under s 339 of the Property Law Act 2007) for sale of the trust property and division of the proceeds to the respective new trusts. Certain supplementary orders are sought in terms of balancing payments between the trusts.

[2] During the course of hearing, the parties responsibly reached agreement in relation to many of the issues between them. Two consent memoranda were entered into relating, respectively, to relationship property and trust property. A further “Deed recording Resolution of Duffy Trust” was also executed by the parties.

[3] In respect of the relationship property, I am satisfied that in so far as agreement was possible, the position reached by the parties was fair and reasonable and in accordance with the provisions of the Property (Relationships) Act 1976 (the Act). I make orders by consent accordingly.

[4] In relation to the Trust assets, agreement was possible in respect of a sales process for the orchard property, disposition of various other assets, repayment of the Trust’s liabilities, various adjustments to the parties’ current accounts and for the balance (after the Court’s adjudication on outstanding issues) to be resettled to new trusts as envisaged by the Trust Deed.

[5] The remaining issues which require adjudication are:

Relationship property

(a) The plaintiff’s claim under s 18B of the Act in the amount of $20,000 for post-separation contributions in the form of child care.

(b)The status (whether relationship…

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 Potter v Duffy

Details

AGLC: Potter v Duffy [2015] NZHC 2996
Case: [2015] NZHC 2996
Decision Date: 27 November 2015

CaseChat Overview and Summary

Potter v Duffy is a case heard in the High Court of New Zealand, Tauranga Registry. The plaintiff, Teri Anne Potter, sought orders for dividing a limited pool of relationship property and devolving certain trust property, principally an orchard and a dwelling in which she and the defendant, Mark Francis Duffy, had lived together despite being separated. The plaintiff sought orders for the sale of the trust property and the division of the proceeds to respective new trusts. The remaining issues for adjudication were the status of a coffee roasting machine, the plaintiff's claim for a share of profits from the machine's operation post-separation, the defendant's claim for reimbursement of certain orchard costs, and whether a parcel of Zespri shares identified in the accounts were trust assets. The court found that the coffee roasting machine was relationship property and its proceeds should be divided 50/50 between the plaintiff and the defendant. The court also found that the plaintiff was entitled to half of the profits derived from the operation of the coffee roasting machine post-separation. Regarding the plaintiff's claim for post-separation contributions, the court awarded her $15,000 for her contributions as the primary caregiver for the children. The court declined to make any adjustments in the current accounts in respect of the defendant's claimed reimbursements and mini-digger services liability. Finally, the court declared the Duffy Trust to be the owner of 14,610 Zespri Group Ltd shares.

Orders