R L H v T M M - [2015] NZHC 1050

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

THIS JUDGMENT MAY BE CITED AND REPORTED AS

PICTON V UXBRIDGE IN ACCORDANCE WITH PARAGRAPH [104] OF THIS JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2015-476-001 [2015] NZHC 1050

BETWEEN
R L H

Appellant

AND

T M M Respondent

Hearing: 5 May 2015

Appearances:

D A Wood for Appellant
C O'Connor for Respondent

Judgment:

19 May 2015

JUDGMENT OF MANDER J

[1] Mr H appeals an order made by Judge Strettell in favour of the respondent, Ms M, regarding the division of relationship property under s 14A of the Property (Relationships) Act 1976 (the Act).1

Background

[2] Ms M and Mr H met in late 1993. Sometime in 1994 they commenced living together. Their relationship produced a child in March 1996.

1 M v H [2014] NZFC 10160 [The Division Judgment].

PICTON v UXBRIDGE [2015] NZHC 1050 [19 May 2015]

[3] When the parties commenced living together, Mr H sold his farm property to a company owned by a trust, of which he and his accountant were the trustees. A lease of a neighbouring property with an option to purchase was acquired in 2001. Following separation, Mr H exercised the option to purchase the property.

[4] The parties’ relationship between 1993 and 2004 was difficult. There were several occasions when they lived apart and subsequently reconciled. On two occasions, Ms M sought and obtained protection orders against Mr H. The first, in
2000, was withdrawn following reconciliation. A subsequent order was made in

2004. Around that time, both parties acknowledged they needed to separate. In May of that year, a property agreement was signed between them. Essentially, the agreement provided that Mr H would, on behalf of the company, pay Ms M the sum of $30,000. This represented funds she had advanced to Mr H’s company. She would also retain her car and chattels. Mr H would retain all other property.

[5] Ms M subsequently applied to have the agreement set aside, and, in July

2013, Judge Strettell annulled the agreement on the basis it would cause serious injustice.2 The Judge noted that, in the ordinary course, the Court would then consider Ms M’s claim for a division of relationship property. However, there was insufficient information available to allow that second stage of the process to occur. The matter was adjourned for further directions regarding the final disposition of the proceeding.

[6] Before the hearing could be reconvened, application was made by Mr H for recall of the judgment on the basis that Judge Strettell had not taken into account the impact of s 4C of the Act. That section provides as follows:

4C Application to existing and future de facto relationships

(1) This Act applies to—

(a) de facto relationships that began before 1 February 2002;
and

(b) de…

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.

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Details

Case: [2015] NZHC 1050
Decision Date: 19 May 2015

CaseChat Overview and Summary

In this appeal, Mr H appeals an order made by Judge Strettell in favour of Ms M, regarding the division of relationship property under s 14A of the Property (Relationships) Act 1976 (the Act). The appeal lies against the Judge’s finding that s 14A applies and the order made in favour of Ms M that her contribution to the relationship should be recognised by an award of $42,000. The issues to be determined on the appeal can be broken down under two broad headings. Firstly, whether Judge Strettell was correct in the circumstances to apply s 14A of the Act. Secondly, whether the award pursuant to s 14A(3) was the subject of proper assessment. Ms M has cross-appealed, raising a number of issues incidental to Judge Strettell’s decision. It is also necessary to clarify the status of the $30,000 payment made by Mr H to Ms M. The appeal is dismissed, as is the cross-appeal. Costs should lie where they fall.

Orders