Preston v Preston - [2019] NZHC 3389

LEAVE GRANTED PURSUANT TO S 11B(3) OF THE FAMILY COURT ACT 1980 THAT THIS JUDGMENT MAY BE PUBLISHED USING THE PARTIES’ FULL NAMES.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-463-51 CIV-2017-463-30 CIV-2017-463-31

[2019] NZHC 3389

BETWEEN
KATHARINE ELIZABETH PRESTON and

Others Plaintiffs

AND

GRANT LEE PRESTON and Others Defendants

Hearing: 1 to 8 July 2019

Counsel:

IM Hutcheson for plaintiffs JM McCleary for defendants

Judgment:

18 December 2019

Reissued:

11 February 2020

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 18 December 2019 at 4 pm, 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 and Others v Preston and Others [2019] NZHC 3389 [18 December 2019]

CONTENTS

Introduction [1]
Factual background

The parties’ respective backgrounds and their meeting in 2007 [4]

2007 to October 2009 [13]

October 2009 to October 2014 [25]

October 2014 to separation [39]

Subsequent events [49]

Approach to claims [54]
Observations on the evidence [58]

The start of the de facto relationship

Introduction [67]

Approach [70]

Discussion [72]

Mrs Preston’s contributions to The Fairway [76]

Mrs Preston’s contributions to EBTL [79]

The 051 proceeding
Introduction and procedural background  [96]
Economic disparity – s 15 of the Act
Introduction  [101]
Section 15 - approach  [102]
Section 15 in this case - discussion  [114]
Did relationship property either sustain or contribute to the increase in

value of Mr Preston’s separate property? [120]

Section 15A  [121]
Sections 9A and 17 – approach  [122]
Sections 9A and 17 – discussion  [126]

Chattels [134]

Family Proceedings Act – s 182
Introduction  [143]
Section 182 – approach  [144]
The parties’ respective positions  [146]
Is the 1 February 2010 deed a “settlement” for the purposes of s 182?             [149] Exercise of the discretion under s 182  [161]

The 031 proceeding
Introduction  [169]
Discussion  [170]
The 030 proceeding
Introduction  [182]
The Pauanui property  [183]
Relevant terms of the PSA  [191]
What happened post separation?  [199]
HFT gives notice of wishing to purchase GPFT’s interest in the property             [202]
The Partnership accounts  [205]
The remaining disputes  [208]
Status of partners’ contributions  [211]
The date at which the valuation of the property should be ascertained                 [219]
Result and next steps

Result [228]

Next steps [229]

Concluding observations [232]

Introduction

[1] Grant and Katharine Preston were married in December 2010, but separated in September 2015.1 The end of their marriage has resulted in three sets of legal proceedings:

(a)The first, the “051” proceeding, in which Mr Preston seeks orders under the Property (Relationships) Act 1976 (the Act) defining what is relationship property and dividing that property between himself and Mrs Preston.2 In turn, Mrs Preston makes a number of applications pursuant to the Act, and the Family Proceedings Act 1980 (the FPA), for adjustments to the relationship property pool and its division.

(b)The second, the “031” proceeding, in which Mrs Preston claims an equitable interest in…

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 [2019] NZHC 3389
Case: [2019] NZHC 3389
Decision Date: 18 December 2019

CaseChat Overview and Summary

The case involved three sets of legal proceedings arising from the marriage of Grant and Katharine Preston, who separated in September 2015. The first proceeding (051) involved a Property (Relationships) Act 1976 (the Act) dispute over the definition and division of relationship property. Katharine sought adjustments to the relationship property pool and its division. The second proceeding (031) involved Katharine claiming an equitable interest in a home owned by Grant's family trust and in his drilling business. The third proceeding (030) concerned their jointly owned holiday property in Pauanui, with Katharine's trust claiming Grant's trust was in breach of an agreement to sell the property. The court found that the de facto relationship began in or around March 2009. Katharine's contributions to the home owned by Grant's family trust were found to be relatively minor. Katharine's contributions to the drilling business were found to be largely consistent with her role as office administrator. The court declined Katharine's claims for economic disparity, increase in value of Grant's separate property, and equitable relief in the 031 proceeding. The court declined to grant specific performance in the 030 proceeding, but encouraged the parties to settle the sale of the Pauanui property based on its updated agreed price. The court ordered an equalising payment from Katharine to Grant.

Orders