PT v S - [2021] NZHC 2399

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES.

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2021-483-7

[2021] NZHC 2399

UNDER the Family Protection Act 1955 and the Property (Relationships) Act 1976

BETWEEN

PT

Appellant

AND

S

Respondent

CIV-2021-483-8

BETWEEN

SH
Appellant

AND

S

First Respondent

PT

Second Respondent

CIV-2021-483-9

BETWEEN

JH
Appellant

AND

S

First Respondent

PT v S [2021] NZHC 2399 [14 September 2021]

PT
Second Respondent

Hearing: 12 August 2021

Counsel:

V A Whitfield for SH K A McDonald for JH

C P Brosnahan and T Manktelow for S No appearance for PT

Judgment:

14 September 2021

JUDGMENT OF CHURCHMAN J

TABLE OF CONTENTS

Introduction [1]

Background [5]
Factual background [5]

JH and SH  [17]
The payments  [25]
Equity in Turakina  [42]
Mortgage repayments  [57]
Source of funds for purchase of Mana  [64]
R’s involvement with his children  [68]

Section 16 of the PRA [92]

Legal issues and conclusion [92]

The FPA claim [112]

The Family Court Judge’s decision [112]

Position of the parties in relation to FPA claim [120]

JH and SH [120]
S [122]

Relevant law and analysis for the FPA claim [124]

Section 4 of the FPA  [124]
Moral duty to JH  [148]
SH  [156]

Result [164]

Costs [165]

Introduction

[1] This is an appeal from a decision of Judge Matheson in the Family Court dated 7 December 2020, relating to the estate of R. R is survived by his children JH and SH and R’s de facto partner, S (the respondent).1

[2]This appeal challenges two aspects of Judge Matheson’s decision:

(a)his failure to exercise his discretion under s 16 of the Property (Relationships) Act 1976 (PRA); and

(b)his decision on the competing claims of parties under s 4 of the Family Protection Act 1955 (FPA).

[3] Section 16 of the PRA addresses the situation where each partner owned a home at the date the relationship started, but when the relationship property was divided, only one home was included within it. It gives the Court a discretion to adjust the shares of the partners to compensate for the inclusion of only one home in the relationship property pool.

[4] Section 4 of the FPA provides the Court with discretion to make orders from an estate if adequate provision for the proper maintenance and support of a claimant is not available from the estate under the deceased’s will.

Background

Factual background

[5] R died on 28 May 2017, at the age of 60. His children, JH and SH were born in 1985 and 1987 respectively. Their mother was R’s then wife, B, who R married in 1983 and separated from in May 1988.

[6] Not long after their marriage, R and B acquired five acres of…

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 PT v S

Details

AGLC: PT v S [2021] NZHC 2399
Case: [2021] NZHC 2399
Decision Date: 14 September 2021

CaseChat Overview and Summary

The appeal was heard by the High Court against a decision of the Family Court in relation to the estate of R who had died intestate. The de facto partner of R, S, and R’s two children, JH and SH, were the parties to the proceedings. The appeal concerned two issues. The first was whether the Family Court Judge had exercised his discretion under s 16 of the Property (Relationships) Act 1976 correctly. The second was whether the Family Court Judge had correctly exercised his discretion under s 4 of the Family Protection Act 1955. The High Court found that the Family Court Judge had not exercised his discretion correctly under s 16 of the Property (Relationships) Act 1976. The High Court found that the Family Court Judge had exercised his discretion incorrectly under s 4 of the Family Protection Act 1955 as the order made did not adequately remedy the breach of moral duty to JH. The appeal was allowed. An order was made under s 16 of the Property (Relationships) Act 1976 that half of the value of the Tanera Crescent property was to be regarded as relationship property. In relation to the Family Protection Act 1955, the decision of the Judge was varied so that S was to receive half of R’s interest in the Turakina property rather than all of that interest. Other than as expressly varied, the Judge’s other findings in relation to the Family Protection Act 1955 claim remain.

Orders