Prescott v Thompson - [2020] NZHC 3322

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-002190

[2020] NZHC 3322

BETWEEN
PETER RICHARD PRESCOTT

Plaintiff

AND

VIOLET GEORGINA THOMPSON

First Defendant

AND

THE KINNEY STEEN THOMPSON TRUST

Second Defendant

AND

THE KINNEY STEEN THOMPSON LIMITED

Third Defendant

Hearing: 19 November 2020

Counsel:

No appearance by the Plaintiff

R Harrison QC for the Defendants

Judgment:

15 December 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 15 December 2020 at 2.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
R Harrison QC, Auckland Boyle Mathieson, Auckland
Blackstone Chambers, Auckland

PRESCOTT v THOMPSON [2020] NZHC 3322 [15 December 2020]

Introduction

[1] In October 2019 the plaintiff, Peter Richard Prescott, commenced a proceeding against his former partner, Violet Thompson, the Kinney Steen Thompson Trust, a trust which Ms Thompson settled in 2005 and which invests in and administers rental properties (the Trust), and Kinney Steen Thompson Ltd (KSTL), the trustee of the Trust. Subsequently, Mr Prescott discontinued the proceeding with respect to the Trust but maintained his claims against Ms Thompson and KSTL as trustee.

[2] The statement of claim alleges five causes of action, most of which refer to sections of the Property (Relationships) Act 1976 (PRA). The relief sought is an order under the PRA to void a contracting out agreement that Mr Prescott and Ms Thompson entered into in accordance with s 21 of the PRA.

[3] By notice dated 22 January 2020, the defendants appeared under protest to object to the High Court’s jurisdiction to hear the proceeding on the grounds that Mr Prescott’s claims were purportedly brought under the PRA and were out of time, having regard to s 24(1)(c) of the PRA, and the High Court lacked jurisdiction to hear the claims.

[4] In June 2020, Mr Prescott applied to set aside the defendants’ protest to jurisdiction. That application was opposed by the defendants.

[5] The application to set aside the defendants’ protest to jurisdiction was set down for 19 November 2020. Because Mr Prescott failed to appear, the protest to jurisdiction was heard by way of formal proof.

Relevant background

[6]According to Ms Thompson:

(a)She and Mr Prescott were in a de facto relationship from October 2011 until March 2012 and from July 2012 until October 2016

(b)In November 2013, Ms Thompson and Mr Prescott signed a contracting out agreement under which Mr Prescott agreed that any contributions made by Mr Prescot to the relationship or to any property would not result in Mr Prescott obtaining an interest in Ms Thompson’s property;

(c)The relationship ended on 19 September 2016.

[7] Mr Prescott denies that the relationship ended on 19 September 2016. He says that from that date he and Ms Thompson entered into a “temporary living apart arrangement” and that the actual date the relationship ended requires a judicial determination.

Related proceedings

[8] In 2017, Mr Prescott brought a claim in the District Court…

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 Prescott v Thompson

Details

AGLC: Prescott v Thompson [2020] NZHC 3322
Case: [2020] NZHC 3322
Decision Date: 15 December 2020

CaseChat Overview and Summary

The case of Prescott v Thompson involves a legal dispute between Peter Richard Prescott, the plaintiff, and Violet Georgina Thompson, the first defendant, as well as the Kinney Steen Thompson Trust and Kinney Steen Thompson Limited, the second and third defendants, respectively. The primary issue revolves around the validity of a contracting out agreement entered into under the Property (Relationships) Act 1976 (PRA) and the subsequent claims for equitable distribution of assets. The High Court of New Zealand was tasked with determining the jurisdiction over Prescott's claims and whether they fell within the purview of the Family Court as mandated by the PRA.

The central legal issues addressed by the court were whether Smith AJ had made any jurisdictional findings, whether Prescott's claims were applications under s 23 of the PRA, and whether any of Prescott's claims should be struck out or required conditions imposed on Prescott. The court concluded that Smith AJ had not made any findings regarding the jurisdiction of either the High Court or the Family Court. It further found that Prescott's second, third, fourth, and fifth causes of action, which sought orders under the PRA, were applications that should have been brought in the Family Court. Consequently, the court upheld the protest to jurisdiction for these causes of action and dismissed them. However, the court determined that the first cause of action, which alleged a constructive trust, was not subject to the PRA and set aside the protest to jurisdiction for that claim. The court declined to strike out the first cause of action but directed Prescott to replead it with specific conditions to expedite the resolution of the case.

The final orders of the court included dismissing the second, third, fourth, and fifth causes of action due to the protest to jurisdiction, setting aside the protest for the first cause of action, directing Prescott to replead the first cause of action with conditions, and awarding costs to the defendants on a 2B basis.

Orders