Sands v O'Horgan - [2017] NZHC 1524

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2016-404-003019 [2017] NZHC 1524

IN THE MATTER OF
the Property (Relationships) Act 1976 and

Family Protection Act 1955

AND

IN THE MATTER

of an appeal against the decision of Judge De Jong delivered on 28 October 2016 at the Auckland Family Court

BETWEEN

DAWN JUNE SANDS Appellant

AND

FRANK OʼHORGAN, NOEL OʼHORGAN AND DIANE EVELYN SNOW AS EXECUTORS OF THE ESTATE OF B F OʼHORGAN

First Respondents

DIANE EVELYN SNOW and DAVID FRANK OʼHORGAN AS TRUSTEES OF THE OʼHORGAN FAMILY TRUST Second Respondents

Hearing: 18 May 2017

Counsel:

G Minchin & J Gandy for Appellant
V Crawshaw & S Powrie for Respondent

Judgment:

4 July 2017

JUDGMENT OF DUFFY J

This judgment was delivered by me on 4 July 2017 at 1.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

SANDS v OʼHORGAN & Ors [2017] NZHC 1524 [4 July 2017]

Solicitors / Counsel
Thomas & Co, New Lynn West, Auckland Grove Darlow & Partners, Auckland Graeme Minchin, Henderson
V A Crawshaw, Auckland

[1] B O’Horgan died on 25 May 2013. He left $20,000 in his will to the appellant, Dawn Sands. She was his de facto partner from the early 1990s until his death, and they lived together in a property on Meadow Crescent (Meadow Crescent), which was solely owned by Mr O’Horgan. In May 2001, Mr O’Horgan settled a trust (the O’Horgan Family Trust) and transferred Meadow Crescent to that trust. Ms Sands did not learn of this until later. In the Family Court, Ms Sands claimed this transfer was intended to defeat her rights under the Property (Relationships) Act 1976 (PRA), and that she was entitled to relief under s 44 of that Act. Alternatively, she claimed compensation under s 44C of the PRA, or under s 4(1) of the Family Protection Act 1955 (FPA).

[2] Ms Sands was partially successful. On 28 October 2016, Judge de Jong held that:1

(a) Ms Sands and Mr O’Horgan were in a qualifying de facto relationship for the purposes of the PRA.

(b) However, Ms Sands’s claim under s 44 of the PRA was declined as

the transfer was not intended to defeat her rights.

(c) The executors of Mr O’Horgan’s estate were to pay Ms Sands a compensatory award of $50,000 under s 44C of the PRA.

(d)Mr O’Horgan did not breach his moral duty to Ms Sands so as to bring s 4(1) of the FPA into play.

[3] Ms Sands now appeals against Judge de Jong’s decision regarding: (a) his

finding that the transfer of Meadow Crescent was not intended to defeat Ms Sands’s

1 S v Executor of R [2016] NZFC 8970.

rights under the PRA; (b) his assessment of the sum she would receive by way of compensation under s 44C of the PRA; and (c) his finding that Mr O’Horgan’s testamentary dispositions did not breach his moral duty to Ms Sands.

[4] The first respondents are the executors 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 Sands v O'Horgan

Details

AGLC: Sands v O'Horgan [2017] NZHC 1524
Case: [2017] NZHC 1524
Decision Date: 4 July 2017

CaseChat Overview and Summary

Dawn Sands appeals against a Family Court decision that rejected her claim that Frank O’Horgan transferred his home to a family trust in order to defeat her rights under the Property (Relationships) Act 1976 (PRA). She also appeals against the amount of compensation awarded to her, and the finding that Mr O’Horgan did not breach his moral duty to her. The respondents oppose the appeal. Sands argues the Judge erred in finding there was no intention to defeat her rights, and that s 16 of the PRA was relevant to determining compensation. She also argues the Judge should have found a breach of moral duty under the Family Protection Act 1955 (FPA). The appeal was allowed in part. The Judge’s finding that Mr O’Horgan did not intend to defeat Sands’s rights was upheld. However, the appeal was allowed in respect of the amount of compensation awarded under the PRA, and the finding of no breach of moral duty under the FPA. The Court found that Ms Sands should receive a payment of $20,000 from Mr O’Horgan’s estate together with 5 per cent interest per annum from date of Mr O’Horgan’s death until date of payment, those payments being in substitution of the gift of $20,000 under the will and the Judge’s order that the respondents pay Ms Sands interest of 5 percent per annum on this sum from the date of Mr O’Horgan’s death until the date of payment.

Orders