Turner v del la Varis - [2021] NZHC 776

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2398

[2021] NZHC 776

UNDER the Property (Relationships) Act 1976

BETWEEN

LEWIS JOHN TURNER

Appellant

AND

ANTONIA CAMILLE SHOTA COPPELIA DEL LA VARIS

Respondent

Hearing:
24 February 2021

Further submissions 3, 4, 8, 16, 18, 24 and 30 March 2021

Appearances:

Appellant on own behalf

A Malone for the Respondent

Judgment:

13 April 2021

JUDGMENT OF GORDON J

This judgment was delivered by me on 13 April 2021 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Snedden & Associates, Auckland Counsel: A Malone, Grey Lynn, Auckland Copy to: The Appellant

TURNER v DEL LA VARIS [2021] NZHC 776 [13 April 2021]

Introduction

[1] The appellant, Lewis Turner, appeals orders made by Judge Burns in the Family Court at Auckland on 19 November 20201 in relation to Mr Turner’s application for interim distribution of relationship property under s 25(3) of the Property (Relationships) Act 1976 (the Act).

[2] In his judgment, the Judge ordered the sale of a Grey Lynn residential property owned by a company, Serene Limited (Serene) which is owned by Mr Turner and the respondent, Antonia del la Varis (Mr Turner’s former partner). The Judge also ordered the sale of a section on Waiheke Island owned by the Turner del la Varis Trust (Trust) of which the parties are both trustees and discretionary beneficiaries.

[3] In the Family Court, the need for interim relief was not in dispute (nor was it in this Court). The issue in the Family Court (and again in this Court) was the form of relief.

[4] Although the Family Court Judge made orders in favour of Mr Turner, Mr Turner submits on appeal that both orders for sale were made outside the jurisdiction of the Family Court and create prejudice. Mr Turner submits the relief he had sought in the Family Court should have been granted and he seeks that relief on appeal.

[5]Ms del la Varis seeks to uphold the orders made by Judge Burns.

The properties

[6]The properties owned by the parties, Serene and the Trust are as follows:

(a)It is common ground the shares in Serene are relationship property. Mr Turner legally owns a 95 per cent share in Serene and Ms del la Varis owns a 5 per cent share, but Serene’s shares are owned 50/50 for relationship property purposes. Serene owns:

1 Turner v del la Varis [2020] NZFC 10016.

(i)77 Sussex Street, Grey Lynn (Sussex Street) valued at
$2.15 million as at September 2019. It comprises a main residential dwelling and another dwelling, both of which were rented at the time of the Family Court hearing. Ms del…

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 Turner v del la Varis

Details

AGLC: Turner v del la Varis [2021] NZHC 776
Case: [2021] NZHC 776
Decision Date: 13 April 2021

CaseChat Overview and Summary

In Turner v del la Varis, the appellant, Lewis Turner, appealed against orders made by the Family Court Judge in relation to an application for interim distribution of relationship property under s 25(3) of the Property (Relationships) Act 1976. The Family Court had ordered the sale of a Grey Lynn residential property owned by a company, Serene Limited, and a section on Waiheke Island owned by the Turner del la Varis Trust. Turner argued that the Family Court lacked jurisdiction to make the orders for sale as the properties were not relationship or separate property, but property owned by third parties. Turner also submitted that the orders for sale created prejudice. The court accepted that the Family Court lacked jurisdiction to make the orders for sale and quashed the orders. The court held that the only available options for interim relief were for all the shares in Serene to be vested in Turner, or the sale of a property at 94 Fairview Crescent. The court rejected the former option due to practical difficulties, and accepted the latter option as the only available option for interim distribution purposes. The court allowed the appeal, quashed the orders made by the Family Court, and made orders for the sale of the property at 94 Fairview Crescent, with the net proceeds to be divided equally between the parties. The court also made orders for the rental income from another property to be applied to outgoings, with any balance to be divided equally between the parties. Costs were reserved.

Orders