Smith v Smith

[2025] NZHC 1344

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-000155

[2025] NZHC 1344

UNDER

Sections 143 – 145A of the Land Transfer Act 20107

BETWEEN

SHARON JEAN SMITH

Plaintiff

AND

ALLAN RAYMOND SMITH and NEIL

WILLIAM WELCH as trustees of the SMITH FAMILY TRUST
First Defendants

ALLAN RAYMOND SMITH and NEIL
WILLIAM WELCH as trustees of the SMITH TRADE TRUST

Second Defendants

Counsel:

S Tee for Applicant

P Morgan KC for Defendants

Judgment:

(On the papers)

13 June 2025

JUDGMENT OF WHATA J

This judgment was delivered by me 13 June 2025 at 4.00pm

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors/ Counsel:

Morton Tee, Auckland

Braun Bond & Lomas, Hamilton P J Morgan KC, Hamilton

SMITH v SMITH [2025] NZHC 1344 [13 June 2025]

[1]    Sharon Smith and Allan Smith separated in 2019. Sharon sought declaration as to a life interest together with one half share of legal title of affected properties (the Constructive Trust claim) and/or a cash payment in the order of $3.133 million in respect of nuptial settlements under s 182 of the Family Proceedings Act 1980 (FPA) (the FPA nuptial settlements claim). In the alternative, she claimed $2.8 million pursuant to s 44 of the Property (Relationships) Act 1976 (PRA) for a gift made by Allan one month before they married (the PRA claim). These claims were opposed by Allan. He said that Sharon’s direct contributions had already been accounted for, that there have been no nuptial settlements and that the “gift” was simply an on-paper capital gain only.

[2]I resolved:1

Outcome

[107] Sharon has succeeded in establishing that the Trusts were nuptial settlements. She is entitled to a distribution in the order of $1.683 million (less the sum already paid out to her). I reserve leave however for further submissions on the exact quantum for the reasons noted at [96]. I also reserve leave to the parties to address the Court on the final form of any relief. Submissions on these residual matters are to be filed within 10 working days. My expectation is that they should be able to be agreed.

[108]The constructive trust and s 44 claims are dismissed.

Costs

[109]    If costs cannot be agreed, submissions may be filed within ten working days. The submissions must not be more than five pages in length.

[3]Since that judgment the parties have helpfully agreed the following orders:

(a)The defendants are ordered to pay to the plaintiff the sum of

$1,683,150.00 less the sum of $640,000.00 already paid, leaving a balance of $1,043,150.00.

(b)The defendants are to pay the plaintiff’s costs in the sum of $56,850.00 including disbursements.

1      Smith v Smith [2025] NZHC 515.

[4]Final orders accordingly.

Whata J