Smith v Smith - [2018] NZHC 3405

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-14

[2018] NZHC 3405

IN THE MATTER of an application for contempt of court order against Machiko Smith

BETWEEN

BOYD ALLEN SMITH

Applicant

AND

MACHIKO SMITH

Respondent

Hearing:
22 November 2018

(Closing submissions filed 30 November 2018, 7 December 2018
and 14 December 2018)

Counsel:

J A Browne and P J Wilson for Applicant B Westenra and M J Wills for Respondent

Judgment:

19 December 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 19 December 2018 at 1:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Henderson Reeves Lawyers (Whangarei) for Applicant Wills Westenra Ltd (Whangarei) for Respondent

SMITH v SMITH [2018] NZHC 3405 [19 December 2018]

Introduction

[1] Mr Smith and Mrs Smith are at feud. They were married for many years but separated in 2015. They are arguing in the Family Court about the validity of an agreement they entered into on 18 September 2015 dividing relationship property. Mr Smith now contends Mrs Smith earlier breached a Family Court restraining order in 2015. He has filed an originating application seeking orders:

(a)That the respondent, Machiko Smith, be held in contempt of Court and be committed to prison or fined as the Court thinks fit.

(b)A portion of any fine be paid to [Mr Smith].

(c)Costs on an indemnity basis.

Background

[2] The restraining order obtained by Mr Smith in the Family Court on 23 July 2015 is in these terms:

On application made to it, the Court makes an Order:

1.Restraining the Respondent Ms Machiko Smith from disposition of:

a)any credit balance in any bank accounts in the Respondent’s, Applicant’s or the party’s joint names including all accounts annexed hereto; and

b)any share holdings in any company and any bonds either in the Respondent’s, Applicant’s or party’s joint names including all accounts annexed hereto; and

c)a Rolex watch.

2.The Respondent has leave to apply to set aside or vary these orders on 5 days notice.

[3] Mr Smith contends Mrs Smith breached the order as per the following schedule:1

1 Some items in the schedule were not pursued following the hearing before me. I have retained the original numbering for those that are.

SCHEDULE: TRANSACTIONS MADE DURING RESTRAINING ORDER PERIOD 24 JULY 2015 TO 25 SEPTEMBER 2015

Transaction Number	Date	Account Owner	Bank	Bank Account Number	Amount	Narration on bank statements
2	27-Jul-15	Machiko	ANZ	[REDACTED]	$21.30	Pepe’s Dairy
4	27-Jul-15	Machiko	ANZ	[REDACTED]	$200.00	DD
5	31-Jul-15	Machiko	Kiwibank	[REDACTED]	$11,153.50	Wills Westenra
6	31-Jul-15	Machiko	Kiwibank	[REDACTED]	$47.13	Akiko Sakamoto
7	31-Jul-15	Machiko	Kiwibank	[REDACTED]	$8,000.00	Transfer to M Smith – Kiwibank 01
8	4-Aug-15	Machiko	Kiwibank	[REDACTED]	$300.00	ATM withdrawal – Otaika
9	5-Aug-15	Machiko	Kiwibank	[REDACTED]	$700.00	Wills Westenra
10	5-Aug-15	Machiko	Kiwibank	[REDACTED]	$1.00	Machiko – BNZ 02
11	5-Aug-15	Machiko	Kiwibank	[REDACTED]	$50.00	Machiko – Rabobank 50
12	12-Aug-15	Machiko	Kiwibank	[REDACTED]	$906.00	Wills Westenra
13	14-Aug-15	Machiko

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 Smith v Smith

Details

AGLC: Smith v Smith [2018] NZHC 3405
Case: [2018] NZHC 3405
Decision Date: 19 December 2018

CaseChat Overview and Summary

The case of Smith v Smith involved a dispute between former spouses, Boyd Allen Smith and Machiko Smith, regarding the validity of a property settlement agreement and allegations of contempt of court. Mr Smith filed an application seeking orders to hold Mrs Smith in contempt of court for breaching a restraining order, to be committed to prison or fined, and for costs on an indemnity basis. The court examined whether Mrs Smith deliberately breached a restraining order obtained by Mr Smith in the Family Court. The restraining order prohibited Mrs Smith from disposing of certain assets, including bank accounts and a Rolex watch. Mr Smith alleged that Mrs Smith breached the order through various transactions. The court found that certain transactions were deliberate breaches of the restraining order, while others were not. The court held Mrs Smith in contempt of court for specific transactions but did not impose any sanctions, instead issuing a formal warning. The court also considered costs and ordered them to lie where they fall, pending any contrary submissions by a specified date.

Orders