Thakurdas v Wadsworth - [2018] NZCA 516

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA413/2018
[2018] NZCA 516

BETWEEN	PETER ARUN THAKURDAS Appellant
AND	GARRY DESMOND WADSWORTH AND SHARON ANNE ELIZABETH WADSWORTH AS TRUSTEES AND EXECUTORS OF THE ESTATE OF SABA THAKURDAS OF AUCKLAND (DECEASED) Respondents

Hearing:	25 October 2018
Court:	Miller, Clifford and Gilbert JJ
Counsel:	S R Jefferson QC and L M Reed for Appellant G M Illingworth QC and A K Hyde for Respondents
Judgment:	21 November 2018 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the respondents costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Miller J)

The question in this appeal by leave is whether personal representatives of a deceased spouse may bring an application under s 182 of the Family Proceedings Act 1980 (the Act).[1] The Family Court and High Court both held that the personal representatives may bring an application.[2] For reasons we may state quite shortly, we agree.

The facts

[1]Leave was granted in Thakurdas v Wadsworth CIV-2017-404-1950, 6 July 2018 (Minute of Jagose J).

[2]Wadsworth v T [2017] NZFC 5833, (2017) 4 NZTR 27-014; and Thakurdas v Wadsworth [2018] NZHC 1106, [2018] NZFLR 451 [HC judgment].

For our purposes the facts are few and uncontroversial. Peter and Saba Thakurdas married in 1991. There is one child of their marriage, Faraaz, who is aged 22.
On 13 March 2002, the spouses settled a family trust under which they and Faraaz are discretionary beneficiaries and Faraaz is the final beneficiary. It is common ground that this this is a nuptial trust, entered on the premise that the marriage would endure. The trustees were Mr and Mrs Thakurdas and a mutual friend, Mr Trevor Atwood. The trustees held the former family home at Gillies Avenue, Epsom, Auckland, and leased it to Mr and Mrs Thakurdas.
The Family Court dissolved the parties’ marriage on 15 October 2014. On 3 December 2014 Mrs Thakurdas brought proceedings under the Property (Relationships) Act 1976 (the PRA) seeking division of property. Those proceedings have not been resolved.
On 23 January 2015 Mrs Thakurdas succumbed to cancer. Faraaz is the sole beneficiary under her will.
The family home has been sold and its proceeds are held in trust pending resolution of this litigation.
On 18 June 2015 the respondents, who are Mrs Thakurdas’s personal representatives, brought an application under s 182 of the Act, seeking an order for equal distribution of the net proceeds of sale of the family home between Mr Thakurdas and the estate. It is common ground that this application was brought within a reasonable time following dissolution of the marriage. It was met with a protest to jurisdiction on the ground that her claim under s 182 was personal in nature and abated on her death.

The appellant’s case

Under s 182(1), which we set out below, the Family Court may inquire into the existence…

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 Thakurdas v Wadsworth

Details

AGLC: Thakurdas v Wadsworth [2018] NZCA 516
Case: [2018] NZCA 516
Decision Date: 21 November 2018 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Peter Arun Thakurdas against the decision of the High Court and the Family Court that allowed the personal representatives of his deceased wife, Saba Thakurdas, to bring an application under section 182 of the Family Proceedings Act 1980. The appeal was dismissed by the Court, which found that the personal representatives of a deceased spouse may indeed bring an application under s 182 of the Act. The court's decision was based on statutory interpretation and the historical context of the provision, as well as the broader purpose of the legislation, which is to do justice in particular circumstances by modifying arrangements that were premised on an enduring relationship.

The main legal issue in the case was whether the personal representatives of a deceased spouse may bring an application under section 182 of the Family Proceedings Act 1980. The Court of Appeal found that the statutory language and its evident purpose suggested that only a party to the relationship may invoke the jurisdiction. The court also considered the historical context of the provision, which indicated that the right to apply is not confined to a spouse suing in the capacity of a beneficiary or party. The court held that the jurisdiction is not personal in nature and did not abate on the death of Mrs Thakurdas, and that it would be inconsistent with the approach to preclude any claim by the personal representatives of a deceased former spouse.

The Court of Appeal dismissed the appeal and found that the personal representatives of a deceased spouse may bring an application under section 182 of the Family Proceedings Act 1980. The appellant was ordered to pay the respondents' costs for a standard appeal on a band A basis and usual disbursements.

Orders