Unkovich v Marbeck - [2015] NZHC 742

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-0002 [2015] NZHC 742

BETWEEN
ZELJAN ALEXANDER UNKOVICH

Applicant

AND

ROGER MURRAY MARBECK AND DEIRDRE MARBECK

First Respondents

AND

ANNETTE DELWYN UNKOVICH Second Respondent

AND

UNKOVICH TRUSTEE LIMITED Third Respondent

Hearing: 13 March 2015

Appearances:

J L Foster for Applicant
J H Hunter for Respondents

Judgment:

24 April 2015

JUDGMENT OF KEANE J

This judgment was delivered by me on 24 April 2015 at 10am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Davies Law, Newmarket, Auckland
Whaley Garnett, Greenlane, Auckland

UNKOVICH v MARBECK [2015] NZHC 742 [24 April 2015]

[1] On 25 August 2009 Zeljan and Delwyn Unkovich entered into an agreement dividing their property and contracting out of the Property (Relationships) Act 1976. They had been married for 26 years, had recently been apart for almost a year, and had been reconciled for a further year. Their agreement, they said, was intended to provide Delwyn with certainty.

[2] On 29 August 2008, as an agreed consequence, Delwyn settled the Langs Beach Trust and appointed family friends, the Marbecks, as trustees. On the same day they, in their capacity as trustees, acquired the family’s beach house at Langs Beach from Seaside Homes Limited, in which Zeljan had initially held all the shares but in which Delwyn by then had an equal shareholding under their agreement. This purchase was financed by two trusts in which Zeljan and Delwyn also had equal rights and interests, either before their agreement or as a result of it.

[3] On 1 September 2008 Delwyn also settled the Gladstone Trust, and appointed other family friends, the Hills, as trustees. On the same day the Hills, in their capacity as trustees, acquired the family’s principal residence in Gladstone Road, Parnell, which belonged to Delwyn and was deemed under the agreement not to be the family home but instead to be Delwyn’s separate property. The Hills acquired as well a vacant section next to the house at Langs Beach, which was also Delwyn’s separate property.

[4] Zeljan and Delwyn separated in 2013. Delwyn continued to live at the Gladstone Road address. Zeljan lived partly with relatives and partly at the beach house. In April 2014 the Gladstone Trust purchased a second Parnell property for Delwyn and the Gladstone Road address was sold. Zeljan spent three weeks at the new address to help Delwyn move in. After that they separated finally.

[5] Later in 2014 Delwyn denied Zeljan any further access to the beach house. Then on 11 December 2014 she removed the Marbecks as trustees of the Langs Beach Trust, and appointed in their place Unkovich Trustee Limited, which had apparently been incorporated for that purpose; and, it appears as well, to become the sole trustee of the Gladstone Trust. The Hills have also apparently been removed as trustees.

[6] On 14 December 2014, before Delwyn lodged the transfer of title from the Marbecks to UTL then called for, Zeljan lodged a statutory notice…

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 Unkovich v Marbeck

Details

AGLC: Unkovich v Marbeck [2015] NZHC 742
Case: [2015] NZHC 742
Decision Date: 24 April 2015

CaseChat Overview and Summary

Unkovich v Marbeck involved Zeljan Unkovich, the applicant, challenging the contracting out agreement he and his former spouse, Delwyn Unkovich, entered into in 2009, which excluded certain properties from being considered as relationship property. Zeljan sought to assert a beneficial interest in the beach house held by the Langs Beach Trust, contending that the contracting out agreement was unjust and should be set aside. The legal issues before the court were whether Zeljan could sustain his notice of claim against the beach house title, whether he could assert that the contracting out agreement had become unjust, and whether he could assert a beneficial interest in the beach house inconsistent with the express trust on which it was held. The court found that Zeljan’s notice of claim was viable and should not lapse until his claim was determined judicially. However, the court also noted that Zeljan had yet to commence any proceeding to have the contracting out agreement set aside or to assert a beneficial interest in the Langs Beach property in the face of Delwyn’s express trust. The order was made on the condition that Zeljan must bring any proceeding by a specified date. Costs were reserved for resolution as part of any award made when Zeljan’s claim was resolved definitively.

Orders