Sutton v Bell - [2020] NZHC 327

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1613

CIV-2019-404-1616 [2020] NZHC 327

IN THE MATTER
of an appeal from a Decision of the Family Court at Auckland dated 17 July 2019

of an appeal from a Decision of the Family Court at Auckland dated 27 July 2018

UNDER

the Property (Relationships) Act 1976

BETWEEN

TODD WILLIAM FRANK SUTTON

First Appellant

TODD WILLIAM FRANK SUTTON and HOFFMANN TRUSTEES LIMITED as

trustees of the Todd Sutton Trust Second Appellants

AND

JOANNA ELISIA BELL

Respondent

Hearing: 20 February 2020

Counsel:

LJ Kearns for appellants BN Snedden for respondent

Judgment:

28 February 2020

JUDGMENT OF FITZGERALD J

[As to application for leave to appeal out of time and to adduce further evidence]

This judgment was delivered by me on 28 February 2020 at 2:30 pm, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors: Wynyard Wood, Auckland
Belvedere Law, Auckland (G Bodle)

Sutton v Bell [2020] NZHC 327 [28 February 2020]

Introduction and summary

[1] Mr Sutton and Ms Bell were in a de facto relationship from 2004 until September 2012, when they separated. There are two children of the relationship.

[2] The parties have not been able to resolve their relationship property disputes. There have been various proceedings in the Family Court in this context, as well as in relation to the care of the two children.

[3] The relevant Family Court decisions for present purposes are a decision of Judge Clarkson delivered on 27 July 2018 (the First Decision) and of Judge Druce delivered on 17 July 2019 (the Second Decision). The First Decision determined whether Ms Bell (as the applicant in those proceedings) ought to be granted leave to seek relief under the Property (Relationships) Act 1976 (the Act) out of time, and if so, the commencement and end date of the parties’ de facto relationship.

[4] Judge Clarkson granted leave to commence the proceedings out of time, and determined that the de facto relationship commenced in February 2004 and ended in September 2012.1

[5] Those factual findings were then relied on in the Second Decision, which addressed Ms Bell’s claims under s 44 of the Act. In essence, Ms Bell sought relief under ss 44(1) and 44(2)(a) of the Act in relation to Mr Sutton’s transfer of the home in which the parties were then living (the Property) into a trust (the Sutton Family Trust) in November 2004.

[6] Judge Druce granted Ms Bell’s application, and ordered the trustees of the Sutton Family Trust to transfer the Property to each of Ms Bell and Mr Sutton as tenants-in-common in equal shares.2 That order was to take effect on 18 September 2019 (or such later date as may be agreed between the parties). As far as I understand matters, that is yet to occur.

1 Bell v Sutton [2018] NZFC 5556.
2 Bell v Sutton [2019] NZFC 5363.

[7] The appellants have appealed to…

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 Sutton v Bell

Details

AGLC: Sutton v Bell [2020] NZHC 327
Case: [2020] NZHC 327
Decision Date: 28 February 2020

CaseChat Overview and Summary

In Sutton v Bell, the High Court of New Zealand considered two appeals brought by Mr Sutton against decisions made by the Family Court. The first appeal was brought out of time, as it relied on evidence that was not available when the Family Court made its decision. The second appeal concerned the Family Court's decision to grant Ms Bell relief under the Property (Relationships) Act 1976. The High Court considered whether it should permit the appeals and, if so, whether it should permit the appellants to adduce further evidence. The Court concluded that it was appropriate to grant leave to adduce the further emails on the condition that the remaining material was made available to the respondent. The Court also concluded it was appropriate to grant leave to file the appeal out of time. The Court ordered that the appeals be heard together on 11 March 2020.

Orders