Stuart v Stoneham - [2021] NZHC 3316

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1946

[2021] NZHC 3316

UNDER the Property (Relationships) Act 1976

BETWEEN

NEIL GORDON STUART

Appellant

AND

ANNETTE LISA STONEHAM

Respondent

Hearing: 7 July 2021

Appearances:

S R Mitchell for Appellant

S J McCarthy QC for Respondent

Judgment:

6 December 2021

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 6 December 2021 at 3 pm pursuant to r 11.5 of the High Court Rules

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

Solicitors: Berman & Burton, Auckland
Murdoch Price, Auckland

Counsel: S R Mitchell, Auckland
S J McCarthy QC, Auckland

STUART v STONEHAM [2021] NZHC 3316 [6 December 2021]

[1] This is an appeal against a decision of Judge Pidwell dated 16 September 2020 determining issues as to the parties’ relationship property.1

[2]The appellant, Mr Stuart, appeals against the Judge’s orders:

(a)that the increase in value of Mr Stuart’s interest in a partnership with his brother, Bruce Stuart, and which owned the “Kupe St properties”, was relationship property to which Ms Stoneham was entitled to a half share;

(b)that $202,000 of a debt owed by the David Stuart Trust (“DST”) to Mr Stuart was relationship property to which Ms Stoneham was entitled to a half share;

(c)that the circumstances of s 17A Property (Relationships) Act 1976 (“Act”) were not engaged;

(d)that a property situated at Mono Place, Auckland, should be sold in the absence of payment of the sums due to the respondent, Ms Stoneham, within 42 days of the date of judgment.

[3] Mr Mitchell, counsel for Mr Stuart at the hearing, informed me that Mr Stuart was no longer appealing the Judge’s order that Mr Stuart was to pay the sums due to Ms Stoneham within 42 days.

[4] Ms Stoneham cross-appeals in respect of the Kupe St properties and otherwise opposes the appeal.

Representation and proposed affidavit evidence

[5] After the appeal was heard, Mr Stuart informed the Court that he was no longer represented by Mr Mitchell, and he also sought leave to file fresh evidence. This fresh evidence took the form of an affidavit and exhibits. Some of the exhibits were in fact before the Family Court and before me on appeal. However, to the extent the evidence

1 Stoneham v Stuart [2020] NZFC 7936.

was not before the Family Court, I decline to grant leave to file it. It is not fresh, and nor is it cogent, i.e. it could not affect the outcome of this appeal.

Approach on appeal

[6] In large part, this appeal is governed by the principles in Austin, Nichols & Co Inc v Stichting Lodestar.2 That means it is for the appellant, Mr Stuart or Ms Stoneham as the case may be, to satisfy me that I should differ from the Judge’s decision.

[7] To the extent the Judge exercised discretion in any matter appealed against, the principles in May v May apply. On those points it is for the appellant…

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 Stuart v Stoneham

Details

AGLC: Stuart v Stoneham [2021] NZHC 3316
Case: [2021] NZHC 3316
Decision Date: 6 December 2021

CaseChat Overview and Summary

In Stuart v Stoneham, the High Court was called upon to determine an appeal concerning the division of relationship property between the parties, Mr Stuart and Ms Stoneham. The primary issues focused on the characterization of certain assets as relationship property, specifically the increase in value of Mr Stuart's interest in a partnership with his brother, Bruce Stuart, and the debt owed by the David Stuart Trust (DST) to Mr Stuart. Additionally, the court had to consider whether the Judge exercised her discretion under s 17A of the Property (Relationships) Act 1976 correctly and whether a property at Mono Place, Auckland, should be sold due to non-payment of sums owed to Ms Stoneham. The court found that while Mr Stuart's original one-third share in the partnership remained his separate property, the increase in the value of that share was attributable to the application of relationship property and thus was to be divided equally. The court also upheld the Judge's finding that a portion of the debt due from the DST to Mr Stuart was relationship property, though it varied the amount to be divided. The court dismissed the appeal in all other respects, including the application under s 17A and the order to sell the Mono Place property. The court varied the Judge's orders to reflect the correct apportionment of the relationship property, resulting in a new division of the proceeds from the partnership and the debt from the DST.

Orders