[1] Gary and Jane Shaw entered into a relationship in June 2000. In due course they married and had two children. They are now separated. This summary judgment application arises out of a disagreement between them concerning the management of assets acquired by Mr Shaw and then their family trusts during the course of their relationship.

[2] The plaintiff Gary Shaw, as a trustee of the OPM Trust, seeks an order for the sale of a property at 264 Sunset Road, Windsor Park, presently occupied by his wife and children. The defendant is Haven Trustee Ltd, a trustee that is a part-owner of the Sunset Road property. The settlor and a beneficiary of that trust is Mrs Shaw. The order is sought under s 339 of the Property Law Act 2007 on the basis that the Sunset Road property is co-owned by the OPM Trust and the Haven Trust.

Brief facts

[3] At the time Gary and Jane Shaw entered into their relationship in June 2000, Mr Shaw was the settlor and trustee of the OPM Trust. By the time they commenced living together on 27 November 2000, the Trust owned at least two properties.

[4] On 28 January 2003, the Shaws were married. Their first daughter “O” was born on 11 June 2007 and their second daughter “E” on 22 April 2009.

[5] On 8 August 2003, Mr Shaw purchased the property at 264 Sunset Road, Windsor Park in his sole name (the Sunset Road property). There was an existing dwelling on the property. The property also had subdivision potential, and a separate dwelling underneath the primary house that could be rented out separately.

[6] Mr Shaw had formed the OPM Trust with the assistance of solicitors, Ross Holmes Group Ltd. On 11 September 2003, these solicitors were used to assist in the formation of a new trust, the Haven Trust, where Jane Shaw was the settlor and a beneficiary and Haven Trustee Ltd the trustee.

[7] On 1 August 2006 a partnership was formed between the OPM Trust and the Haven Trust. The Sunset Road property, which was still tenanted, was transferred into the partnership on 1 September 2006.

[8] Mr and Mrs Shaw moved into the property at Sunset Road on 24 March 2009 and it is common ground that the main dwellinghouse was treated as the family home from that point until they separated in November 2010.…

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 Shaw v Haven Trustee Ltd

Details

AGLC: Shaw v Haven Trustee Ltd [2013] NZHC 2961
Case: [2013] NZHC 2961
Decision Date: 8 November 2013

CaseChat Overview and Summary

Gary and Jane Shaw separated and entered into proceedings to resolve the management of assets acquired during their relationship. Gary, as trustee of the OPM Trust, sought an order for the sale of a property at 264 Sunset Road, Windsor Park. The defendant is Haven Trustee Ltd, a trustee that is a part-owner of the Sunset Road property. The settlor and a beneficiary of that trust is Mrs Shaw. The legal issues the Court had to decide were whether the disposition of the property was open to being set aside under s 44 of the Property (Relationships) Act 1976, whether the deed appointing Jane Shaw as a beneficiary of the OPM Trust and the transfer of the Sunset Road property to the trusts was a post-nuptial settlement under s 182 of the Family Proceedings Act 1980, whether an order should be made by the Court in its discretion under s 339 of the Property Law Act, whether the jurisdiction under s 339 to make orders was properly invoked given the existing Property (Relationships) Act proceedings, and whether the Court in its discretion should grant summary judgment. The Court found that the disposition of the property was open to being set aside under s 44 of the Property (Relationships) Act 1976 because it was seriously arguable that the disposition was made in order to defeat the claim of Mrs Shaw. The Court also found that there was an arguable claim by Mrs Shaw under s 182 of the Family Proceedings Act 1980 that the Family Court had jurisdiction to make orders as to the Sunset Road property so as to meet her reasonable expectations arising from a post-nuptial settlement, that settlement being the appointment of Mrs Shaw as a beneficiary to the OPM Trust on 11 September 2003. The Court held that the issues arising under s 339 were not suited to summary judgment and should go to a hearing. The application for summary judgment was dismissed.

Orders