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Van der Hoeven v Van der Hoeven

Van der Hoeven v Van der Hoeven

Case [2020] NZHC 2854 3 November 2020

Contract Formation

Unconscionable Conduct

Natural Justice & Procedural Fairness

Family Law

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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-2019-404-2511

[2020] NZHC 2854

UNDER: the Property (Relationships) Act 1976

BETWEEN

ELIZABETH HUBERTINA VAN DER

HOEVEN by her guardian ad litem Gregory William Feyen

Appellant

AND

JACOB VAN DER HOEVEN

Respondent

Hearing: 6 May 2020

Appearances:

J Connell and R Hallas for the Appellant R Holm for the Respondent by AVL

Judgment:

3 November 2020

JUDGMENT OF HINTON J

This judgment was delivered by me on 3 November 2020 at 4.30 pm pursuant to r 11.5 of the High Court Rules 2016

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Connell & Connell, Auckland R A Holm, Barrister, Auckland

VAN DER HOEVEN v VAN DER HOEVEN [2020] NZHC 2854 [3 November 2020]

[1] This is an appeal against a decision of Judge B R Pidwell in the Family Court at Auckland dated 30 October 2019 regarding division of the property of Jacob (Jack) and Elizabeth van der Hoeven.1 The appeal is over whether a company shareholding is relationship or separate property under the Property (Relationships) Act 1976.2

[2] Jack and Elizabeth were in a relationship for 29 years. They started living together in mid-1988, married on 20 May 1989 and separated in October 2017. It was a second marriage for both of them. They each have adult children from their first marriages.

[3] Elizabeth filed this proceeding in May 2017 while still living in the family home. In September 2017, a psycho-geriatrician concluded that Elizabeth lacked capacity and her son, Mr Feyen, was appointed as her litigation guardian. Elizabeth has not herself participated in the proceeding since September 2017.

[4] Prior to their relationship, Jack had significant business and other assets, including a 50 per cent shareholding in a company called Castle Products Limited, a house at Bridge Avenue, Te Atatu South and a yacht. It seems Elizabeth had only a car and some cash. Jack and his business partner had formed Castle Products back in 1971.

[5] At the end of the relationship, there was no dispute that the parties’ mortgage- free family home at Mizpah Road, Waiake, household chattels and modest bank accounts were relationship property and to be divided equally. These totalled approximately $1,200,000 in value, such that each party’s share was about $600,000.

[6] The issues in dispute revolve around the status of a one-third shareholding in Heritage Investments Limited (HIL), a company formed during the relationship subsequent to the sale of Castle Products. The value of 100 per cent of the shares in HIL is accepted to be approximately $3,270,000 as at March 2019 and the value of the one-third shareholding at that date therefore $1,090,000, based on then net asset value.

1 van der Hoeven v van…

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 Van der Hoeven v Van der Hoeven

Details

AGLC: Van der Hoeven v Van der Hoeven [2020] NZHC 2854
Case: [2020] NZHC 2854
Decision Date: 3 November 2020

CaseChat Overview and Summary

This is an appeal from a Family Court decision concerning the division of property between Jacob and Elizabeth van der Hoeven. Elizabeth's appeal was limited to the classification of a one-third shareholding in Heritage Investments Limited (HIL). The appeal was heard in the High Court of New Zealand. The key legal issues were whether the HIL shareholding was relationship or separate property under the Property (Relationships) Act 1976. The court had to decide if the shares were acquired out of separate property, and if they were acquired for the common use or benefit of the parties. The High Court found that the shares were not solely acquired out of separate property and were acquired for the common use or benefit of the parties, making them relationship property. The court also decided that the 2016 dispositions and the claim for unequal sharing should be remitted to the Family Court for further determination.

Orders