Preston v Preston - [2020] NZHC 957

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-463-30 CIV-2017-463-31

CIV-2017-463-51 [2020] NZHC 957

BETWEEN KE PRESTON and Others Plaintiffs

AND

GL PRESTON and Others Defendants

Hearing: On the papers

Counsel:

IM Hutcheson for plaintiffs JM McCleary for defendants

Judgment:

13 May 2020

JUDGMENT OF FITZGERALD J

[As to costs]

This judgment was delivered by me on 13 May 2020 at 10 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:Jespersen & Associates, Auckland (G Jespersen) Buddle Bentley McCleary Ltd, Whakatane

Preston v Preston [2020] NZHC 957 [13 May 2020]

Introduction and background

[1] In my judgment delivered on 18 December 2019,1 I determined the parties’ respective claims in these three proceedings, which arose out of the end of Mr and Mrs Preston’s marriage in September 2015.2

[2] In the first proceeding (the 051 proceeding), originally commenced by Mr Preston in the Family Court, Mr Preston sought orders under the Property (Relationships) Act 1976 (the Act) defining the parties’ relationship property and dividing that property between them.

[3] In response, Mrs Preston made a number of applications pursuant to the Act and under the Family Proceedings Act 1980 (the FPA) for adjustments to the relationship property pool and its division.3 She also commenced the 031 proceedings and the 030 proceedings in this Court. In the 031 proceedings, Mrs Preston claimed an equitable interest in both a home owned by Mr Preston’s family trust, as well as in shares in Mr Preston’s drilling business, also owned (largely) by his family trust.4 The 030 proceedings related to the couple’s holiday property in Pauanui, which is jointly owned by their respective family trusts (Pauanui Property). Mrs Preston alleged that Mr Preston’s trust was in breach of an agreement to sell the Pauanui Property, and sought specific performance of the agreement.

[4] The 051 proceedings were transferred (by consent) to this Court to be heard together with the 031 and 030 proceedings.

[5] In my December 2019 judgment, I largely found in favour of Mr Preston in the 051 proceedings, dismissing Mrs Preston’s claims for the various adjustments sought to the relationship property pool. I also dismissed Mrs Preston’s claims in the 031 and 030 proceedings.

1      Preston v Preston [2019] NZHC 3389.
2      For convenience, I will refer to the plaintiff parties collectively as “Mrs Preston” and the defendant parties as “Mr Preston”.
3      These proceedings were later transferred to the High Court, to be heard together with the 030 and 031 proceedings (both commenced by Mrs Preston in this Court).
4      Mrs Preston’s claim to an interest in these assets was based on Lankow v Rose type principles.

[6] At the conclusion of my judgment, I encouraged the parties to agree costs. While Mrs Preston agrees that costs must follow the event and accordingly Mr Preston is entitled to costs in the ordinary way, she opposes both the scale cost calculations presented on behalf of Mr…

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 Preston v Preston

Details

AGLC: Preston v Preston [2020] NZHC 957
Case: [2020] NZHC 957
Decision Date: 13 May 2020

CaseChat Overview and Summary

The case of Preston v Preston involved a dispute between former spouses, Mr and Mrs Preston, regarding the division of their property following their divorce. The case was heard in the High Court of New Zealand and encompassed three separate proceedings: the 051 proceeding under the Property (Relationships) Act 1976, the 031 proceeding concerning an equitable interest in certain assets, and the 030 proceeding related to the couple's holiday property in Pauanui. The main legal issues included defining the parties' relationship property, dividing that property, and determining the validity of claims for equitable interests in specific assets. The court had to decide whether Mrs Preston's claims were meritorious and whether she unreasonably rejected settlement offers made by Mr Preston.

In its judgment, the court largely found in favour of Mr Preston, dismissing Mrs Preston's claims for various adjustments to the relationship property pool and her claims in the 031 and 030 proceedings. The court also addressed the issue of costs, with Mr Preston seeking a 50 per cent uplift in scale costs, arguing that many of Mrs Preston's claims lacked merit and she unreasonably rejected his settlement offers. The court, however, declined to award an increase in costs based on the lack of merit in Mrs Preston's claims, stating that even if some claims were framed more narrowly, the costs would not have been materially reduced. Regarding the settlement offers, the court found that while Mrs Preston's rejection of the August 2017 and May 2018 offers was unreasonable, a 50 per cent increase in costs was not warranted. Instead, the court awarded a 20 per cent increase in scale costs for steps taken after August 2017 in the 030 proceeding and after May 2018 in the 051 and 031 proceedings.

The final orders included a total scale costs award in Mr Preston's favour of $94,143.40, plus disbursements of $43,089, leading to an overall costs award of $137,232.40. The court also recorded that each of the disbursements claimed by Mr Preston was awarded to the individual proceeding in which it was incurred, with specific allocations for the hearing fee among the three proceedings.

Orders