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Simpson v Sax

Simpson v Sax

Case [2015] NZHC 1466 26 June 2015

Occupation Rent

Reimbursement

Interest

Contractual Interpretation

Family Law

Property Law

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2013-470-493 [2015] NZHC 1466

BETWEEN
LUKE ANDREW SIMPSON

Plaintiff

AND

JANINE DAVINA SAX First Defendant

LUKE ANDREW SIMPSON AND JANINE DAVINA SAX as trustees of the LUKE AND JANINE SIMPSON FAMILY TRUST

Second Defendant

Hearing: 28 and 29 May 2015

Counsel:

E M Eggleston for Plaintiff
P F Gorringe for First Defendant

Judgment:

26 June 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 26 June 2015 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Holland Beckett (Tauranga) for Plaintiff
Gina Jansen (Hamilton) for First Defendant

SIMPSON v SAX [2015] NZHC 1466 [26 June 2015]

Introduction

[1] Mr Simpson and Ms Sax were married in March 2009, having lived together for a short time. In early 2011, they separated. In 2013, they were divorced. They have no children together.

[2] Their relationship is acrimonious, and that acrimony has sparked many Court proceedings, including this one. It is a great shame; particularly since the sums of money at issue in this case are not large. A simple agreement to share equally the funds now held on trust for them would have saved legal fees, time and stress. But they cannot bring themselves to agree on anything, and so I must decide the issues they place before the Court in this proceeding.

[3] This case concerns the use of a house purchased by their Family Trust (“the

Trust”) for them to live in. The price was $481,000. The Trust funded the purchase:

(a) By a loan of $356,000 from Mr Simpson. This was evidenced by a Deed of Acknowledgement of Debt. The debt was payable upon demand and “[p]ending demand being made the Debt Shall be free of interest”.1

(b) By a loan of $100,000 from a Trust established by Ms Sax’s father.

This debt was evidenced by an identical Deed of Acknowledgement of Debt.

(c) By a wedding gift of $25,000 from Ms Sax’s father’s Trust.

[4] The trustees of the Trust were Mr Simpson, Ms Sax and GTA Trustees Ltd (in the person of Mr Grace). Mr Simpson and Ms Sax were discretionary beneficiaries of the Trust.

[5] At the time the house was bought by the Trust in July 2009, it was tenanted at a rental of $450 per week. In September 2009, Mr Simpson and Ms Sax moved in,
and lived there rent free until they separated in February or March 2011 (the parties

1 Deed of Acknowledgment of Debt dated 17 July 2009, cl 3.

do not agree on the date). After the separation, Ms Sax continued living in the house for a while before going overseas temporarily. Mr Simpson, without her knowledge, then moved in, and remained there for the rest of the time it was owned by the Trust. Mr Simpson bought the house from the Trust on 1 November 2013.

[6] Mr Simpson claims that:

(a) Ms Sax owes the Trust $18,900 for rent for the period…

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 Simpson v Sax

Details

AGLC: Simpson v Sax [2015] NZHC 1466
Case: [2015] NZHC 1466
Decision Date: 26 June 2015

CaseChat Overview and Summary

Simpson v Sax is a case involving the acrimonious relationship between Simpson and Sax, who were married in March 2009 and separated in 2011. The case concerns the use of a house purchased by their Family Trust, funded by loans and a wedding gift, with Simpson and Sax as trustees and discretionary beneficiaries. Simpson claims occupation rent from Sax, and Sax claims occupation rent from Simpson, as well as damages for lost rental income and bond refund due to Simpson's interference with a tenancy agreement. Simpson also claims interest on his loan and reimbursement of payments made in respect of the house. Sax claims reimbursement of payments she made in respect of the house.

The court found that Simpson and Sax had the right to occupy the property rent-free, and that Simpson could not bring a derivative action on behalf of the Trust to claim occupation rent. However, Simpson was entitled to pursue Sax for occupation rent for the 42 weeks that she occupied the property and excluded him from exercising his right to occupy, and Sax was entitled to bring her claim against Simpson for occupation rent for the 97.7 weeks that he occupied the property and excluded her from exercising her right to occupy. Simpson was not liable for damages arising from the broken tenancy agreement. The Trust was to pay Simpson interest on his loan, and Simpson was entitled to be reimbursed by the Trust for payments made in respect of the house. Sax was unsuccessful in her claims against Simpson and the Trust.

The court directed Simpson to pay Sax $12,532.50 in occupation rent and ordered the Trust to pay Simpson $17,302.28 for interest on his loan and reimbursement of payments made in respect of the house. Costs were to lie where they fell.

Orders