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| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 10/2021 [2021] NZSC 154 |
| BETWEEN | KATHARINE ELIZABETH PRESTON |
| AND | GRANT LEE PRESTON |
| Hearing: | 3 August 2021 |
Court: | Winkelmann CJ, Glazebrook, O’Regan, Ellen France and Williams JJ |
Counsel: | V T M Bruton QC, I M Hutcheson and N L Walker for Appellant |
Judgment: | 9 November 2021 |
JUDGMENT OF THE COURT
AThe appeal is allowed.
B Orders are made that the Grant Preston Family Trust pay the Huntbos Family Trust $141,000 and release any claim to the $192,000 of the funds held on joint account (the Grant Preston Family Trust share of these funds is $102,000 and the Huntbos Family Trust share is $90,000).
CThe Grant Preston Family Trust deed is amended by removing the appellant as a discretionary beneficiary.
DLeave is reserved to the parties to seek further directions or orders that may be necessary to give effect to this judgment.
EThe first respondent must pay the appellant costs of $25,000 plus usual disbursements. We certify for second counsel. Unless the parties can agree, costs in the Courts below are to be redetermined in those Courts in accordance with this judgment.
____________________________________________________________________
REASONS
(Given by Ellen France J)
Table of Contents
| Para No. | |
| Introduction | [1] |
| The background | [9] |
| The facts | [10] |
| The Courts below | [19] |
| The High Court decision | [19] |
| The Court of Appeal decision | [21] |
| The case for the parties | [25] |
| The approach to s 182 | [27] |
| Relevant provisions | [27] |
| Purpose and principles | [32] |
| A three-stage process | [39] |
| The approach to the third stage | [40] |
| Concluding observations | [51] |
| Did the Court of Appeal apply the correct approach? | [59] |
| The second stage of the inquiry – the scale of the disparity | [60] |
| Treatment of contributions | [66] |
| The source of assets treated as decisive | [74] |
| The appropriate orders | [75] |
| Result | [83] |
Introduction
Under s 182 of the Family Proceedings Act 1980, the court has the power to vary the terms of a nuptial settlement where the parties’ marriage or civil union comes to an end.[1] This Court in Ward v Ward[2] and, more recently, in Clayton v Clayton [Claymark Trust][3] considered the principles to be applied in determining whether orders should be made under s 182.[4] These cases made it clear that the purpose of s 182 was to enable the courts to remedy the consequences of the failure of the premise on which the nuptial settlement was made, that is, a continuing marriage.[5]
[1]The regime under s 182 of the Family Proceedings Act 1980 applies to civil unions as well as marriages. Because we are dealing with a marriage, we will refer to marriage only in the judgment.
[3]Clayton…
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- AGLC
- Preston v Preston [2021] NZSC 154
- Case
- [2021] NZSC 154
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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