Shaw v Haven Trustee Ltd

[2013] NZHC 2961

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002457 [2013] NZHC 2961

BETWEEN  GARY TERRANCE SHAW Plaintiff

ANDHAVEN TRUSTEE LIMITED Defendant

Hearing:                   10 October 2013

Appearances:           K G Davenport QC and J Wall for Plaintiff

K A Muir and C Tataru for Defendant

Judgment:                8 November 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on 8 November 2013 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

K Davenport QC, Auckland. J Wall, Auckland.

Morgan Coakle, Auckland.

SHAW v HAVEN TRUSTEE LTD [2013] NZHC 2961 [8 November 2013]

Introduction

[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.    On  separation Mrs Shaw stayed in the house with the two children and has continued to occupy it down to the present time. The separate dwelling is tenanted and rent is being paid.

[9]      On 21 March 2013, a notice was sent purporting to dissolve the partnership between the OPM Trust and the Haven Trust.   Mr Shaw filed this application on

8 May 2013.   On 11 June 2013 Mrs Shaw applied to the Family Court for orders relating  to  the  division  of  relationship  property,  and  six  days  later  the  Shaws’ marriage was dissolved.   On 11 October 2013, the notice of dissolution for the partnership expired.

The position of the parties

[10]     Mr Shaw’s case is put forward against that factual background.  As noted, Mr Shaw, as trustee of the OPM Trust, and Haven Trustee Ltd, as trustee of the Haven  Trust,  own  the  Sunset  Road  property  as  partners.    There  is  an  impasse between them as to whether the property should be sold.  The Court has jurisdiction to make an order for the sale of co-owned property under s 339 of the Property Law Act 2007, and Mr Shaw argues that it should do so.  He asserts that there has been no rent paid in relation to the dwelling used by his wife and two children, and that the outgoings have to be supported by using other assets of the trust.  He asserts that his debt level has increased by over $100,000 as he struggles as trustee to maintain borrowings.  He has the children for four nights every two weeks, and he takes the view the children could live in another of their properties in a different suburb that is of less value.

[11]     Mr Shaw also seeks the payment of occupation rent by Mrs Shaw of $600 per week for the period of her occupation, and an order for sale by public auction at a reserve of not less than $650,000 (although these do not appear as specific relief

sought in the application).  He proposes that after payment of mortgages and costs the balance of the proceeds be held in his solicitor’s trust account pending further order of the Court or agreement by the parties.

[12]     Mrs  Shaw  in  response  asserts  in  essence  that  the  issue  of  the  ongoing occupation and any issues as to the sale of the Sunset Road property will all be dealt with in due course in the Family Court proceedings, and that there are a number of sound defences to the claim that there should be an order for sale.   She does not accept Mr Shaw’s claims as to much of the factual background, or the hardship to him, and asserts that it will impose real hardship on the children to make them move to a smaller house in a different neighbourhood.

[13]     I  record  that  these  proceedings  also  related  originally  to  another  bach property also owned by the two parties at the Karikari peninsula.  During the course of the hearing, agreement was reached as to an interim resolution of issues in relation to that property, and that aspect of the application does not need to be considered in this judgment.

The issues

[14]     The approach to determining summary judgment applications is now well settled.  The question is whether the defendant has any defence to the claim; that is whether there is no real question to be tried in defence.1   The onus is on the plaintiff. The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents, but need not accept uncritically evidence that is inherently lacking in credibility.2   The Court may take a robust and realistic approach where the facts warrant it.3

[15]     The underlying issue as I see it is whether this case can be approached as Ms Davenport QC for Mr Shaw suggests, as a straight forward claim under the Property Law Act where the Court does not need to go beneath the skin of the legal

form of the transactions.  To put it more precisely, are any of the substantive points

1      Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3.

2      Eng Mee Yong v Letchumanan [1980] AC 331 (PC).

3      Bilbie Dymock Corporation Ltd v Pitul [1987] 1 PRNZ 84 (CA) and Krukziener v Hanover

Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].

that are raised in defence against the application realistically arguable?   On my assessment these five points are:

(a)      Is the disposition of the property out of the name of Mr Shaw and into the names of the trusts open to being set aside under s 44 of the Property (Relationships) Act 1976 (the PRA) because it was made with the intention of defeating Mrs Shaw’s claim to the property?

(b)Is the deed appointing Jane Shaw as a beneficiary of the OPM Trust and the transfer of the Sunset Road property to the trusts a post- nuptial settlement under s 182 of the Family Proceedings Act 1980 (the FPA), and could the Court’s discretion be invoked in relation to that settlement?

(c)      In any event, should an order be made by the Court in its discretion under s 339 of the Property Law Act given the claimed hardship?

(d)Is the jurisdiction under s 339 to make orders properly invoked given the existing PRA proceedings?

(e)       Should the Court in its discretion grant summary judgment?

[16]     It would by usual to consider issue (c) first since that goes to the heart of the application.   However,  in this instance  I will turn to the exercise of the s 339 discretion after considering the arguments raised by counsel in relation to the PRA and the FPA as they are relevant to the exercise of that discretion.

Section 44

[17]     The first issue to be decided is whether it is seriously arguable that under s 44 of the PRA an order could be made setting aside the disposition by Mr Shaw of the Sunset Road property to the Trusts.  If so, the Court may make a variety of orders under  s  44(2),  including  an  order  that  any  person  who  received  the  property otherwise  than  in  good  faith  and  for  valuable  consideration  shall  transfer  the property to such person as the Court directs.

[18]     Sections 44(1) and (2)(a) provide:

44   Dispositions may be set aside

(1)   Where the High Court or a District Court or a Family Court is satisfied that any disposition of property has been made, whether for value or not, by or on behalf of or by direction of or in the interests of any person in order to defeat the claim or rights of any person under this Act, the Court may … make any order under subsection (2) of this section.

...

(2)   In any case to which subsection (1) of this section applies, the Court may, subject to subsection (4) of this section,—

(a)   Order that any person to whom the disposition was made and who received the property otherwise than in good faith and for valuable consideration, or his [or her] personal representative, shall transfer the  property  or  any  part  thereof  to  such  person  as  the  Court directs[.]

[19]     In assessing this defence, there are three matters for the Court to address:

(a)       Is the Sunset Road home “property” to which s 44 can be applied, given that it was purchased by Mr Shaw, and transferred to the Trusts?

(b)Was the disposition made in order to defeat the claim of any person, in this case Mrs Shaw?

(c)       Did the person who received the property, in this case the two trusts, do so otherwise than in good faith and for valuable consideration?

[20]     As to the first issue, Ms Davenport argued that at the time of the disposition of the property by Mr Shaw into the name of the two trusts, Mrs Shaw had no rights in the property.

[21]     It is by no means clear that this submission would succeed at trial.   The transfer was unusually not by a partner or spouse to a third party over which the other spouse or partner had no connection.   In fact Mrs Shaw was the settlor and trustee of the Haven Trust which received a half interest in the property as well as the OPM Trust.   However, the property at Sunset Road was acquired in 2003 by

Mr Shaw in the course of their relationship.  There is no precise evidence on how the property was paid for.  It is certainly arguable that the property, when it was acquired by Mr Shaw,  became  relationship  property under ss  8(e) and  8(ee) as  property acquired “after the marriage”.  Mrs Shaw also claims that she made contributions to the property which may be a basis for a claim under s 9A(1) and (2).

[22]     In any event, I consider it strongly arguable that it is immaterial whether at the time of disposition Mrs Shaw had no existing rights to the property.  Section 44 relates to the disposition of property generally.  The word “property” is defined in very broad terms and is not limited to the disposition of relationship property.  Any “property” will do.

[23]     Moreover, even if Mrs Shaw had at the time of disposition in 2006 lacked any immediate right to the property under the PRA, that would not be fatal to a s 44 claim.  The focus is on the intention to defeat.  If there was an intention to defeat another party’s rights or claims at a future time, that would be sufficient.4

[24]     In approaching the second issue of whether the disposition was made in order to defeat the claim or rights of any other person under the Act, a useful starting point is the observation in Regal Castings Ltd v Lightbody5 in relation to s 60 of the former Property Law Act 1952.  It was stated that a debtor must be taken to have intended the consequences of actions that had the effect of hindering, delaying or defeating creditors recourse to that property.6    That approach can be applied by analogy to s 44, even though it must be recognised that Mr Shaw was not an actual debtor given the inchoate nature of Mrs Shaw’s PRA rights in 2006.  Here, if the consequence of the disposition was to hinder or defeat Mrs Shaw’s rights or foreseeable potential rights in relation to the Sunset Road property, there may be a good defence based on s 44.

[25]     There  is  no  specific  evidence  before  the  Court  showing  any  expressed intention to defeat on the part of Mr Shaw.   However, Mr Muir for Mrs Shaw

submits that there is circumstantial evidence of such an intention.  He pointed to the

4      Ryan v Unkovich [2010] 1 NZLR 434 (HC) and SMW v MC [2013] NZHC 396 at [59]–[66].

5      Regal Castings Ltd v Lightbody [2008] NZSC 87, [2009] 2 NZLR 433.

6 At [54]. See also Patterson v Davison [2012] NZHC 2757 at [38].

fact that Ross Holmes Group Ltd had acted for Mr Shaw prior to his relationship with  Mrs  Shaw,  and  acted  on  the  disposition  to  the  trusts.    He  observed  that Mrs Shaw did not have independent legal advice (although it was suggested to her by Ross Holmes Group Ltd that she take such advice but she chose not to do so).

[26]     He  also  pointed  to  the  broad  background  facts  where  Mrs  Shaw  is maintaining that she contributed to the property.  Mrs Shaw asserts that the property was acquired with the intention that it would become the family home in the future, and that it was developed and improved to a higher standard than otherwise for that purpose.  Mr Muir submits that it is inconceivable that Mr Shaw was not advised by his lawyers that a consequence of transferring the property from his name into the name of the two trusts was the potential defeat of a range of possible remedies and expectations.  He points particularly to the right to occupation of the family home of a spouse arising under s 27 of the PRA.  Given that it was intended by the Shaws (according to Mrs Shaw) that the Sunset Road property would be occupied by their future family, an intention to defeat her ability to make a future claim for an occupation order could be inferred.

[27]     There  is  limited  material  before  the  Court  on  which  to  assess  these submissions.   The proceedings are at a relatively early stage in the Family Court. There has been no disclosure save for some documents attached to the affidavits. There has been no exploration of what material is available relating to the advice given to Mr Shaw by his solicitors.

[28]     If  the  property  was  not  relationship  property,  Mrs  Shaw’s  position  was arguably improved by the disposition as a trust in which she had an interest received a half share.   But she may have already had an inchoate claim under the PRA. Moreover, I bear in mind that an intention to defeat need not be the sole or main

motive for the transaction.7   The fact was that the change of the status of the property

by  the  disposition  could  have  removed  the  potential  family  home  from  the jurisdiction of the PRA and thereby defeated Mrs Shaw’s potential claim.

7      Regal Castings Ltd v Lightbody, above n 5, at [53]–[54].

[29]     Without expressing any view on the strength of the respective submissions, which would be premature, it is my view that the existence of an intention to defeat is reasonably arguable.   It may succeed or it may fail.   It is too early to say, but Mr Shaw has not shown that the argument is bound to fail.

[30]     The third and final issue is whether it is reasonably arguable that the trust received the property otherwise than in good faith and for valuable consideration. There is no clear evidence on whether the consideration was adequate.  There is no suggestion that the Haven Trust did not so receive the property.  However, it will be argued that the OPM Trust did not receive the property in good faith, and that the consideration shown on the agreement for sale and purchase was not in fact valuable consideration.    This  argument  may  well  stand  or  fall  on  the  conclusion  of  the intention  to  defeat  argument.    If  a  disposition  in  order  to  defeat  the  claim  of Mrs Shaw was shown, then it may well be that this third limb would be made out.

[31]     For the reasons already given in relation to the submission of intention to defeat, it is too early to express a final view, but it does seem to me that for the reasons already given, it is arguable that the transfer was not in good faith and for valuable  consideration,  and  that  s  44  could  be invoked  in  relation  to  the  2006 disposition of the Sunset Road property.

Section 182

[32]     After the filing of the PRA proceedings in May, on 24 September 2013

Mrs Shaw filed a claim in the Family Court for the Court to exercise its jurisdiction under s 182 of the Family Proceedings Act 1980 to make reasonable provision for her so as to meet reasonable expectations arising from a post-nuptial settlement.  The post-nuptial settlement on which she relies was her appointment as a beneficiary of the OPM Trust as the plaintiff’s wife on 11 September 2003, and the subsequent transfer in 2006 of a half share in the property to the OPM Trust.  Section 182(1) provides:

182 Court may make orders as to settled property, etc

(1)   On, or within a reasonable time after, the making of an order under Part

4 of this Act or a final decree under Part 2 or Part 4 of the Matrimonial

Proceedings Act 1963, a Family Court may inquire into the existence of any agreement between the parties to the marriage or civil union for the payment of maintenance or relating to the property of the parties or either of them, or any ante-nuptial or post-nuptial settlement made on the parties, and may make such orders with reference to the application of the whole or any part of any property settled or the variation of the terms of any such agreement or settlement, either for the benefit of the children of the marriage or civil union or of the parties to the marriage or civil union or either of them, as the Court thinks fit.

[33]     In relation to what is a settlement, the statement in Prinsep v Prinsep has often been applied:8

The particular form [the settlement] takes does not matter …   What does matter is that it should provide for the financial benefit of one or the other or both spouses as spouses and with reference to their married state.

[34]     It is clear that the word “settlement” in s 182 is to be given a wide meaning which is not overly technical.9     The section undoubtedly directs attention to the substance and intent of the transaction.10   It is directed at preventing one party from benefitting unfairly from a settlement at the expense of the other.11   It is necessary to identify all relevant expectations that the parties and in particular the applicant party have of the settlement at the time it was made.12     The Court must assess in the changed  circumstances   following  dissolution  the  reasonable  expectations  the applicant had of the settlement at the time of settlement.  The question is whether the dissolution has affected the implementation of the applicant’s expectations.   The interests of all children and other beneficiaries must be considered.  Equal sharing principles do not underpin s 182.13

[35]     I consider it arguable that the appointment of Mrs Shaw in her capacity as the settlor’s wife as a beneficiary of the OPM Trust had the effect of conferring on her a range of equitable rights, expectations and remedies in relation to all of the property of the OPM Trust.  It could be seen as a post-nuptial settlement made by the parties

in terms of s 182, despite the lack of the creation of any new trust.  The appointment

8      Prinsep v Prinsep [1929] 1 P 225 at 232. See also Ward v Ward [2009] NZCA 139, [2009] 3

NZLR 336 at [23].

9      Ward v Ward, above n 8, at [27].

10     Chrystall v Chrystall [1993] 10 FRNZ 441 (FC) at 452.

11     Ward v Ward [2009], above n 8, at [20].

12 At [25].

13     Ward v Ward, above n 8, at [30].

can be seen as providing for the financial benefit of one or both spouses.  It was in that sense, arguably a post-nuptial settlement.   Mrs Shaw from that point had an immediate and ongoing expectation of a share in the Trust’s assets.  That means that Mrs Shaw may persuade the Family Court to make an order in relation to the whole or part of the Sunset Road property for the benefit of the children of the marriage or for her.

[36]     I make it clear that I express no concluded view on the issue of whether an appointment of a spouse as a beneficiary to a pre-nuptial trust is a post-nuptial settlement.  I am not informed of any authority on the point, and any conclusion will be dependent on the detailed facts surrounding the settlement.  Those facts are likely to be still the subject of further elaboration and elucidation following discovery or further disclosure.   While in certain circumstances difficult points of law can be resolved in summary judgment proceedings, this case turning as it does on nuanced questions of fact that will have to be applied to the criteria in s 182, is not one of

them.14

[37]     It will undoubtedly be argued by Mr Shaw at the hearing that the fact that the property at Sunset Road did not become an asset of the Trust at the time it was purchased by Mr Shaw, and was later transferred to the OPM Trust and the Haven Trust is fatal to Mrs Shaw’s position.  The Haven Trust was controlled by Mrs Shaw, and it may be said that this means that there should be no relief granted.  That may be so.  However, I note that under s 182 the Court has a broad discretion to make orders in relation to the whole or any part of any property settled, and orders can be made for the benefit of a party to the marriage.

[38]     A claim under s 182 is pursued in the Family Court, and that is where the claim is filed.  It is not therefore a defence that will be heard in this Court unless it is transferred.15    However, I do not consider that the word “defence” in r 12.2 of the High Court Rules means a defence that can be raised only in the High Court.  In my

view, r 12.2 is sufficiently widely worded to cover any matter that can be raised

14     Pemberton v Chappell, above n 1, at 3–4.

15     Section 14 of the Family Courts Act 1980.

which  could  constitute  an  answer  in  a  court  of  law  to  the  claim.    The  s  182 application is an arguable defence to this claim.

The exercise of the s 339 discretion

[39]     Under s 339, a Court may make orders in respect of property owned by co- owners including the sale of the property.  Section 342 sets out matters to which the Court must have regard.  One of those matters under s 342(d) is:

The hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order.

[40]     Under s 342(e) the value of contributions is relevant, and s 342(f) refers to

“any other matters the court considers relevant”.

[41]     It is a wide discretion  that is given to the Court.   It is stated in  Hinde

McMorland & Sim Land Law in New Zealand:16

Under the provisions of the Property Law Act 2007, however, the Court is given a wide discretion in every case as to the order to be made and both parties may raise full and detailed arguments as to the matters bearing on the exercise of that discretion.  In this case, the summary judgment procedure is not so well suited to these applications and it may be that a full hearing is much more commonly required.

[42]     This statement has been recently quoted in part by the Court of Appeal.   It has been observed that a Court must, taking into account the relevant considerations, stand back and determine the most just and practical way through an impasse.17

[43]     Mr  Shaw’s  claims  to  hardship  are  not  accepted  by  the  Haven  Trust. Mrs Shaw on behalf of the trust claims that she is the primary carer of the children and that they need to stay in the home.  There will be hardship to them if there is an order for sale.   This is not accepted by Mr Shaw.   The discretionary factor of hardship to “any other person” appears to be couched in s 342(d) in deliberately

wide terms.  In itself this could include third parties who will suffer harm if an order

16     G Hinde and others Hinde McMorland & Sim Land Law in New Zealand (online looseleaf ed, LexisNexis) at [13.021(a)].

17     Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [32].

is granted, here Mrs Shaw and the children. The children are still beneficiaries of the trust.

[44]     Therefore, even if Mrs Shaw’s PRA and FPA claims fail, there are hardship issues between the two trusts to be determined under s 339, and it may be that the Haven  Trust  would  obtain  an  order  under  s  339  different  from  that  sought  by Mrs Shaw.  There will be issues also as to what the parties’ respective contributions should be, and their relevance.  It is too early to carry out that exercise.

[45]     If Mrs Shaw’s s 44 PRA claim succeeded, the s 339 balancing exercise would not arise as there would be no co-ownership.  If the s 182 claim only was successful, Family Court orders made relating to that property would have to be considered.  I accept that there could be orders made which provided compensation under other

provisions  of  the  PRA,18   but  whether  any  could  or  would  be  made  cannot  be

predicted.   A sale now under s 339 could render the PRA and FPA claims in the

Family Court nugatory.

[46]     Thus, the issues arising under s 339 are not suited to summary judgment and should go to a hearing.

Section 4 and the general summary judgment discretion

[47]     These two issues cross over and are best heard together.  Section 4(1) of the

PRA provides:

4     Act a code

(1)   This Act applies instead of the rules and presumptions of the common law and of equity to the extent that they apply—

(a)   to transactions between spouses or partners in respect of property;

and

(b)   in cases for which this Act provides, to transactions—

(i)    between both spouses or partners and third persons; and

(ii)  between either spouse or partner and third persons.

18     For instance, under s 11B of the PRA.

[48]     While the Act is expressed to be a code governing property rights in the defined circumstances, it is subject to the qualifications of express provision to the contrary19  and the requirement that there be “transactions” between the married persons and civil union and de facto partners.20   Given my previous findings, it is not necessary to consider the relationship between s 4 and s 339 of the Property Law

Act.  It may well be arguable that s 4(1), applying as it does only to cases “for which this Act provides” does not apply to a property owning partnership of two trusts. The PRA is not stated to have any particular superiority over other statutes.

[49]     This is not a situation like that in Dyas v Elliott21  where there was a s 339 application but no PRA proceedings  and no apparent intention to file any such proceedings.  There are PRA proceedings, and in exercising its summary judgment discretion the Court should take into account the obvious intention in s 4 to have transactions  between  spouses  heard  under  the  PRA.    It  would  in  my view  run contrary to s 4(1) of the PRA and the scheme of that Act to allow a party to take out of the general PRA proceedings a particular legal issue and have that determined in isolation, without the broader relationship property issues being taken into account.

[50]     I take the view also that the Court should not give judgment for the plaintiff under its general discretion under r 12.2(1) of the High Court Rules.   The phrase under that rule is that the Court “may give judgment”.  That word is given its full discretionary meaning.22   It seems to me that there is the possibility of an injustice if the s 339 application between the parties is considered in isolation to other issues.  I do accept that it is possible that in due course it could be determined that the Family

Court does not have jurisdiction to determine the fate of the Sunset Road property. However, that is not a matter that can be determined at this stage.  The reservations that I have already expressed about the possibility that the discretion under s 339 of the Property Law Act being exercised in Mr Shaw’s favour could be reflected by the application being refused.   This would also prompt me to decline to exercise the

discretion.   In the absence of full discovery and full disclosure of all of the facts,

19     Property (Relationships) Act 1976, s 4(2).

20     Section 4(1).

21     Dyas v Elliott HC Auckland CIV-2008-404-1021, 16 April 2010.

22     Sayles v Sayles (1986) 1 PRNZ 95 (HC) at 99.

there would be a danger of oppression or injustice against Mrs Shaw if orders were made under s 339 at this early stage.

Conclusion

[51]     It is seriously arguable that Mr Shaw’s right to seek summary judgment as a trustee of the OPM Trust will not be able to be made out in due course because of a decision of the Family Court under s 44 of the PRA that the disposition of the property into the name of the Trust was a disposition made in order to defeat the claims under the PRA of Mrs Shaw.

[52]     There is also an arguable claim by Mrs Shaw under s 182 of the FPA that the Family Court has 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.   If so the Court may have jurisdiction to make orders with reference to the application of the whole or part of the Sunset Road property either for the benefit of the children of the marriage, or Mrs Shaw.

[53]     Even if Mrs Shaw failed under s 44 of the PRA and s 182 of the FPA the Haven Trust would have available to it arguments on the basis of hardship to the beneficiaries of that trust, should a sale be ordered.   These would need to be determined at a hearing after detailed disclosure of the background and present situation.  The existence of these issues means that the s 339 discretion cannot be fairly exercised.  Moreover, success in the Family Court in whole or in part would change the factual grounds on which the discretion would be exercised.   At the present time with the PRA and FPA proceedings undetermined, there are clearly strong arguments of hardship given that a sale could render those claims nugatory.

[54]     Finally, even if I had not reached the views expressed above, my inclination would have been against entering summary judgment based on my discretion.   If possible all issues relating to the relationship breakup should be determined together. There is a risk of injustice if issues are heard separately, and at an early stage, when all the facts and circumstances may not be disclosed.  If a hearing of all issues at the same time is not possible, there should be a procedure determined for the orderly and

fair determination of issues in the Family Court and High Court, possibly with the Family Court proceedings being considered first or all matters being transferred to the High Court.

Result

[55]     The application for summary judgment is dismissed.

[56]     The parties have leave to apply for further directions as to the future progress of the proceeding.  Counsel should give consideration to how the case should be best resolved procedurally, and endeavour to find a constructive way forward.

Costs

[57]     If the parties are unable to agree on how costs should be dealt with, they may file submissions; the defendant within seven days and the plaintiff within a further seven days.

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Asher J