Wood v Arthur
[2017] NZHC 1745
•26 July 2017
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2017-419-61 [2017] NZHC 1745
IN THE MATTER of the Property (Relationships) Act 1976 BETWEEN
DEAN ROBERT WOOD Appellant
AND
LINDA RAYLENE ARTHUR Respondent
Hearing: 14 July 2017 Appearances:
S Chatwin for the Appellant
M Vickerman and J Hunter for the RespondentJudgment:
26 July 2017
INTERIM JUDGMENT OF MUIR J
This judgment was delivered by me on Wednesday 26 July 2017 at 2.30 pm
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………
Counsel/Solicitors:
S Chatwin, Chatwin Legal Limited, Hamilton
M Vickerman, Barrister, Auckland
J Hunter, Solicitor, Thames
WOOD v ARTHUR [2017] NZHC 1745 [26 July 2017]
Introduction
[1] Mr Wood appeals from a decision of Judge Coyle in the Family Court dated 9
March 20171 in which orders as to the division of relationship property and a minor variation to an earlier order of spousal maintenance were made.
[2] Prior to the hearing of the appeal a number of issues were resolved between the parties and there is no dispute between them in terms of the dollar sums attributable to those issues which remain unresolved.
Background
[3] Mr Wood and the respondent Ms Arthur were in a relationship from 1984 until they separated on 11 January 2013. During their relationship they established a dairy farming partnership trading under the name DR Wood and LR Arthur Farming Partnership and in which they held equal interests. Among other assets, it owned a dairy farm at Owera Road, Te Rerenga, just north of Whitianga, which was purchased in 1998.
[4] Mr Wood and Ms Arthur agreed to dissolve the partnership effective 31 May
2016 and to value the assets and liabilities as at that date for the purposes of a relationship property division. Apart from domestic chattels of relatively low value, motor vehicles and a life insurance policy on the life of Mr Wood, all the relationship property of the parties was owned by the partnership.
[5] From the date of separation routine weekly payments were made to Ms Arthur from the partnership account or an account subsequently established by Mr Wood and into which partnership income was paid. For the period from 11 January
2013 to 6 May 2013 the amount paid was $700 per week. For the period from
6 May 2013 to 31 March 2015 the amount was $800. Thereafter Mr Wood unilaterally reduced the payment to $500.
[6] For the period from 11 January 2013 to 6 May 2013 Ms Arthur remained resident in the family home albeit estranged from Mr Wood. Thereafter she established her own residence.
[7] On 3 September 2015 the same Judge from whose decision the present appeal is brought made spousal maintenance orders in favour of Ms Arthur.2 He determined that her reasonable needs in the period from when she left the home until the date of his judgment were in the amount of $1,090 per week. Given that Ms Arthur had been in receipt of a weekly payment in the amount of $800 from 6 May 2013 to 31
March 2015 he ordered that she be paid a lump sum of maintenance in the amount of
$28,751.43 reflecting a required top up payment of $290 per week over that period. He adopted a similar methodology in respect of the period from 1 April 2015 to
3 September 2015 during which Mr Wood had reduced the weekly payment to $500. For that period he ordered a lump sum maintenance payment of $13,064.29 reflecting the $590 per week shortfall on his assessment of Ms Arthur’s total reasonable needs.
[8] For the period from the date of judgment and concluding on 6 May 2017 or such earlier date as the parties entered into a relationship property agreement and/or the Court finally resolved their relationship property issues, he assessed Ms Arthur’s reasonable needs at $1,300 per week and made orders accordingly.
[9] The relationship property proceedings came before the Judge Coyle on 9
January 2017. His subsequent judgment was the subject of a successful recall application and was ultimately reissued on 9 March 2017.
[10] In that judgment his Honour identified agreed valuations for the partnership and other assets3 and (conditional on confirmation Mr Wood was able to fund the
settlement) ordered that he pay to Ms Arthur the sum of $873,226.74.
2 Arthur v Wood [2015] NZFC 7483.
3 These totalled $1,541,290 for the partnership assets plus household chattels in the hands of each of the parties of $5,618. Mr Wood’s life insurance policy was valued at $53,091, and modest motor vehicle values were not included, except the car valued at $4,651 in Ms Arthur’s possession.
[11] In addition, he ordered that outstanding spousal maintenance of $34,259.19 be paid. He also exercised his discretion under s 32 of the Property (Relationships) Act 1976 (the Act) to make a variation to his former spousal maintenance order in terms that it should continue until such time as Ms Arthur’s settlement was paid at which point “she would be able to meet her reasonable needs”. He noted that:4
To that extent only, I exercise my discretion under s 32 and vary the spousal maintenance order that I made.
[12] In the result, whereas the previous spousal maintenance order terminated on
6 May 2017 or such earlier date as the relationship property orders were made, it was now linked to the settlement.
[13] In response to the judgment, Mr Wood filed a Notice of Appeal and an application for stay. The application for stay was subsequently resolved on the basis that the partnership assets and liabilities be transferred to Mr Wood effective 6 April
2017 with Ms Arthur paid $700,000 on that day and the sum of $243,317.44 held in
her solicitor’s trust account pending the outcome of the appeal.
The issues
[14] By the time of the hearing these had narrowed from those identified in the
Notice of Appeal (and two subsequent amended notices).
[15] One of the principal issues raised in the appellant’s appeal documents was the Family Court’s alleged miscategorisation as drawings, of a salary of $66,000 per annum (net after tax) which the parties had agreed Mr Wood be paid for management of the farm (and thus out of the partnership assets) after the date of separation.
[16] In submissions filed in respect of the appeal Ms Hunter acknowledged that:
The management salary the appellant was due has always been regarded by Ms Arthur as a figure to be retrospectively credited to Mr Wood as if the partners have employed Mr Wood as a manager to run the partnership farming business for them.
Accordingly, she accepted that the Family Court judgment was in error in this respect.
[17] That position was confirmed by Mr Vickerman prior to the hearing of the appeal. Alternative schedules prepared by Mr Chatwin identifying the division of property contended for by Mr Wood and by Ms Arthur both show an agreed salary due to Mr Wood of $223,315 for the relevant period, and were accepted by Mr Vickerman as accurate.
[18] That disposed of one of the more significant issues on appeal. [19] Mr Chatwin identified the remaining issues as follows:
(a) Should the regular weekly payments received by Ms Arthur between separation and dissolution totalling $120,600 plus the sum of $35,051 received by Ms Arthur in 2016 (a total of $155,651) be regarded as a drawing by Mr Wood to pay spousal maintenance to Ms Arthur, or a drawing by Ms Arthur from the partnership?
(b)Should the sum of $47,856.67, being the total rent paid by the partnership to a trust associated with Mr Wood, be regarded as a drawing by Mr Wood or a legitimate expense of the partnership?
(c) In relation to the period from 31 May 2016 onwards should Ms Arthur receive spousal maintenance of $1,300 per week and/or interest on the adjustment sum at the rate of five per cent per annum?
[20] In respect of the first issue I make several preliminary observations:
(a) The reference to the sum of $120,600 is in contrast to the Judge’s reference to $122,000. It is accepted by both parties that the correct figure is $120,600.
(b) There is no live issue before me as to categorisation of this sum.
Judge Coyle adopted the approach that, from a total reasonable needs
assessment of $191,310 from the date that Ms Arthur left the family home to the date of his judgment of 9 March 2017, she was to be taken as having received $122,000 (in fact $120,600) as drawings from the partnership with the result that Mr Wood had a personal liability to her of $69,310 only (in fact $70,710).
(c) That order was made against the stated background5 that if Ms Arthur had shared fully in the payment of partnership profits with Mr Wood then she would not have had a basis to seek spousal maintenance and was consistent with his earlier judgment whereby effectively “top up” amounts were awarded by way of maintenance, in addition to the sums which Ms Arthur had been regularly receiving from the partnership.
(d)Ms Arthur does not cross-appeal from the Judge’s findings in this respect. Nor, as my subsequent discussion illustrates, would I have been minded to depart from the Judge’s approach even if it had been challenged.
(e) In the result, the only live issue in terms of categorisation either as “a drawing by Mr Wood to pay spousal maintenance or a drawing by Ms Arthur from the partnership” relates to the sum of $35,051 received by Ms Arthur in 2016.
(f) That was a sum direct credited to Ms Hunter’s trust account from an account under Mr Wood’s control (and into which partnership income had been paid) made after threatened enforcement of Judge Coyle’s lump sum and continuing maintenance orders. Characterisation of this payment is therefore a live issue in the proceedings.
[21] In respect of the second issue identified by Mr Chatwin, some context is required. In his relationship property judgment Judge Coyle identified what he said
were “additional and significant other benefits”6 which Mr Wood had received from the farming partnership post-separation on top of his agreed salary of $66,000 net per annum. He defined such benefits as including “residence expenses, car expenses, a lease fee to his family trust arising as a consequence of a property he purchased post-separation, legal costs, life insurance premiums and the like”.
[22] His Honour had difficulty assessing the total value of these additional benefits particularly given that neither counsel sought to cross-examine the other party. He said that he could do no more than simply arrive at a figure that he thought was “accurate and fair”7 and assessed the total amount at $100,000.
[23] For the purposes of this appeal Mr Chatwin accepts that such sum was in fact higher. He says that it is $178,289. That amount does not, however, include the sum of $47,856.67 paid by the farming partnership to Mr Wood’s trust for lease of the property acquired post-separation. Although the issue may not strictly be before this Court either by way of appeal or cross-appeal, the parties seek, in the interests of finality, that I address the status of this payment. In the context of Mr Chatwin’s acknowledgment that the Family Court judgment is incorrect in its assessment of non-cash benefits and that an adjustment is required, that seems to me an appropriate course.
[24] The third issue identified by Mr Chatwin challenges Ms Arthur’s entitlement
to spousal maintenance from the date of termination of the partnership (31 May
2016). Such challenge must, however, be considered in the context of Judge Coyle’s
earlier maintenance judgment which was unappealed.
Analysis
Categorisation of the $35,051 payment
[25] As indicated, Judge Coyle categorised the weekly payments received by Ms
Arthur as in substance part payments against her profit entitlements from the
6 At [33].
partnership. To that end he considered the sum of $69,310 only8 to be a personal liability on the part of Mr Wood on a total reasonable needs assessment of $191,310.
[26] Mr Chatwin argues that all of the sums received by Ms Arthur post-separation (being the acknowledged amount of $120,600 in weekly payments, the $35,051 received in response to the maintenance judgment and $41,744 which Ms Arthur independently received from the partnership)9 should simply be aggregated (making a total of $189,278) and applied against the reasonable needs assessment. As a result he says that, in fact, Ms Arthur was only short paid $2,032 against such needs.
[27] It is unnecessary to recite at length the competing contentions of the parties in respect of the adequacy of the weekly provision Ms Arthur received. Mr Wood’s motivations in reducing the amount from $800 to $500 or the capacity of the farming partnership to pay any greater amount consistent with its overdraft limitations. It is clear that the farming partnership was profitable. Indeed, for the period from separation through to dissolution it made profits of $602,000 after tax of which Ms Arthur’s entitlement was half. That would have equated to her receiving a weekly entitlement in the order of $1,700 had all of the profits of the partnership been distributed. They were not. Instead Ms Arthur initially received a payment of approximately half of her entitlements and that was further reduced from 1 April
2015. Judge Coyle reached the conclusion that the reduction was in part to apply pressure on Ms Arthur to reach an agreement in respect of relationship property. Clearly Mr Wood held the “purse strings” and clearly the amounts periodically received by Ms Arthur were inadequate for her total reasonable needs. It is for that reason that Judge Coyle made the maintenance orders that he did in 2015.
[28] I have no difficulty with the Family Court categorising as drawings the regular weekly payments received by Ms Arthur with the result they should not be accounted as a personal liability of Mr Wood. In any event the categorisation of
such weekly payments is not challenged by way of cross-appeal.
8 $70,710 on an adjusted basis.
9 It is not in dispute that Ms Arthur has an obligation to account for such receipt in the context of the final settlement.
[29] However, as his Honour recognised, the position was quite different in relation to the payment of the $35,051.
[30] In M v B William Young P (as he then was) said:10
Those who make periodical payments to former partners sometimes seek to categorise them (either when paid or later) as being on account of relationship property entitlements. For the reasons given by Hammond J, I think that the courts should be slow to countenance such categorisation where the reality is that the money is required for the former partner’s support. If such payments are, in substance, maintenance, they should be so categorised and not taken off relationship property entitlements.
[31] Hammond J expressed the position as follows:11
There is one other general observation I wish to make under this head. It simply cannot be right as a matter of legal principle to say that the spouse who has to make very direct lifestyle changes – for instance in upskilling or retraining and matters of that kind – must first finance those steps out of his or her lawful property entitlement, before resorting to income support obligations. That contention is simply the same sour old wine, in a new bottle.
[32] In this case the principal relationship asset was an income producing property held in a 50/50 partnership. As the Judge held, if Ms Arthur had received her full profit entitlements from that business asset she would have had no need for spousal maintenance. However, she did not receive her full entitlements and was required to apply to the Court for an additional amount of spousal maintenance. It was awarded in what was effectively a “top up” amount of $290 per week for an initial period,
$590 per week as “top up” for a subsequent period and $1,300 per week thereafter.
[33] The payment of $35,051 was made in response to threatened enforcement of that order (including quantified lump sum back payments). In that sense the payment had a direct relationship with the maintenance order. It cannot be regarded as in the same category as the voluntary payments which commenced on the date of separation. Mr Wood chose to conduct the affairs of the partnership on a basis whereby Ms Arthur received inadequate support. As a result the Court ordered him to assume a personal maintenance liability for additional weekly amounts. He chose
to satisfy that liability in part from an account containing relationship property. He
10 M v B [2006] 3 NZLR 660 (CA) at 184.
11 At [258].
cannot now simply net off all of the amounts paid to Ms Arthur when part of the sum so paid relates to the personal liability imposed on him.
[34] I add for the sake of completeness that I do not, on the evidence, accept Mr Chatwin’s submission that Mr Wood was at all times willing to make greater payments to Ms Arthur but was precluded from doing so. To the extent that there were bank constraints these were significantly self-inflicted given that additional monies that had been borrowed to purchase the adjoining trust property and, inter alia, on the security of the partnership’s income. Requests that Ms Arthur guarantee such additional borrowings in order to facilitate an increased partnership overdraft and thus allow greater weekly payments to her were in my view appropriately rejected.
[35] Despite Mr Chatwin’s submissions, I do not identify any unfairness to Mr Wood in the result. To the extent it may encourage people in Mr Wood’s position to ensure appropriate provision from income earning relationship assets post- separation, no further justification is required. By contrast, were I to now characterise the payment made pursuant to a maintenance order as a drawing by Ms Arthur it would create perverse incentives in the context of any similar future case.
[36] For the foregoing reasons the payment of $35,051 is to be accounted as a drawing by Mr Wood to meet a personal liability.
[37] Approached on this basis there is no requirement for me to consider Mr Chatwin’s submission that s 32 of the Act confers a power to adjust the division of relationship property to recognise previous maintenance payments. Such an adjustment would in my view be inappropriate for the reasons I have identified. However, as Mr Vickerman submits, Mr Chatwin’s approach to s 32 is not, in any event, supported by authority. In Clayton v Clayton Courtney J said:12
The wording of s 32 suggests, however, that it only operates de futuro. There is no means under s 32 by which monies already paid under a maintenance order could be recouped. Likewise, the compensatory provisions in the PRA do not contain any mechanism that would permit an
12 Clayton v Clayton [2015] NZHC 550, (2015) 30 FRNZ 153 at [26].
adjustment of the division of relationship property to recognise previous maintenance payments.
[38] The wording in s 32 is in this sense, usefully compared with s 99 of the Family Proceedings Act 1980 which also provides that the Court may discharge, vary or suspend a maintenance order. The comparison is particularly instructive in the context of s 99(3) which provides that:
An order under this section varying a maintenance order by increasing the amount payable under it may, if the Court thinks fit, take effect from a date that is earlier than the date of the order of variation but is not earlier than the date on which the grounds for the variation arose.
[39] I accept Mr Vickerman’s submission that s 32(2)(b) does not include a power to suspend or remit arrears. This makes sense because, as he submitted, on division of relationship property there is usually a material change in the parties’ circumstances. The need for financial support will change as will the ability to provide for it. From that time forward it is appropriate that the Court considers the need for and the ability to pay ongoing support. That is the situation to which the section is directed, not in my view the antecedent position.
[40] Nor do I accept Mr Chatwin’s submission that under s 25 of the Act I should intervene to effectively recharacterise the $35,051 as drawings on Ms Arthur’s part. Not only does the justice of the case not require it but “just” orders under s 25 are necessarily made in a context of the identified principles in the Act. Although it will always be necessary to ask whether the overall scheme of the legislation has been satisfactorily met in the circumstances of the particular case, part of the scheme of that legislation is s 32 which I accept to have been appropriately interpreted by Courtney J in Clayton v Clayton.
Payment of $47,856.67 for lease of trust lands
[41] The background to this issue is that for 12 of the 14 years prior to the parties’ separation the farming partnership leased an adjacent area of land. After the separation Mr Wood purchased the land in the name of a family trust and then arranged that it be leased to the partnership. He did so without Ms Arthur’s input or consent. There is no suggestion in the evidence that the amount paid under the lease
was other than the market value, nor that the land was not used for partnership purposes. Indeed, the 41 hectares concerned allowed the partnership to carry an additional (approximately) 80 head of dairy stock.
[42] Ms Arthur says that because none of this was with her authority, the lease payment should be regarded as a personal benefit to Mr Wood – a proposition which Judge Coyle appears to have accepted. She says that in fact the partnership profits were lower in the years following the acquisition and lease than they were in the previous period. However, Mr Chatwin says that submission takes no account of the fact that the price per kilogram of milk solids had declined significantly between the two periods.
[43] There was no expert evidence before the Family Court comparing what would have been the profit of the partnership (assuming no lease of the adjoining property but carrying 80 fewer head of dairy stock) with the profit actually achieved. There was accordingly no basis on which, for example, to have awarded Ms Arthur compensation for dissipation of relationship property under s 18C of the Act.
[44] I cannot see that it was appropriate to regard the lease payment as effectively a personal drawing on Mr Wood’s part when the partnership received the benefit of the lease in terms of additional productivity. Only if it could be shown that there had been an actual loss to the partnership from Mr Wood’s decision to lease the adjoining land should it, in my view, have been reflected in the division of relationship property. Likewise, any over-market rent could properly be accounted as a personal benefit but the evidence here did not support that conclusion either.
[45] In my view therefore the lease payment is appropriately regarded as a normal business outgoing of the partnership and should not be accounted as a personal benefit to Mr Wood.
Spousal maintenance
[46] Paragraph [32](c) of Judge Coyle’s spousal maintenance judgment provided that Ms Arthur be paid maintenance on the following terms:
(c) From the date of this judgment in the sum of $1,300 per week to be paid weekly, until 6 May 2017 or such earlier date upon which the parties enter into a relationship property agreement and/or order of the Court finally resolving all of their relationship property issues.
[47] In his relationship property judgment his Honour exercised his discretion under s 32 of the Act to vary the earlier order by requiring, “ongoing maintenance from 31 May 2016 to the day [on] which the monies are to be paid at the rate of
$1,300 per week”.13
[48] Mr Chatwin submits that Mr Wood’s spousal maintenance obligations should be regarded as terminating on the day the partnership was dissolved but says Mr Wood should be liable to pay interest on the amount due to Ms Arthur from that date until the date of payment at a rate of five per cent per annum.
[49] I do not consider that I have jurisdiction on this appeal to re-open the subject of Mr Wood’s spousal maintenance liability for the entire period from 31 May 2016. The liability both before and after that date was determined by Judge Coyle’s decision of 3 September 2015. That decision was not appealed. It provided for payment until 6 May 2017 being a date by which his Honour evidently considered Ms Arthur would be in a position to have made adequate provision for her own maintenance.
[50] The relationship property decision is in its terms clear that, only to a very limited extent, was his Honour varying that earlier order. He did so to ensure that Ms Arthur received maintenance until such time as her settlement was paid, at which point he assessed her as “able to meet her reasonable needs”.14 Whereas in respect of the September 2015 judgment such maintenance would have terminated on the day of the re-issued relationship property judgment (9 March 2017), the reissued
judgment provided for it to continue “to the day [on] which the monies are to be
paid”.
13 Arthur v Wood, above n 1, at [47](a).
14 At [32].
[51] On 6 April 2017 a substantial payment was made to Ms Arthur but not all of her entitlements, either pursuant to the Family Court judgment or flowing from this judgment, have been received.
[52] Technically therefore an appeal may be available from an award of spousal maintenance at a rate of $1,300 per week for the period from 9 March 2017 to 6
April 2017. However, there was nothing before the Family Court which would indicate Ms Arthur’s needs were materially less in that period than in any earlier period. She was still not in receipt of relationship property entitlements with which to re-establish herself either in a new home or with the income which might be derived from investment. In the absence of evidence that her circumstances had materially changed for the better, as for example from her ability to secure fulltime employment, it was well open, in my view, for the Family Court to continue the spousal maintenance award for the period through to settlement. This was in any event, and as matters transpired, one month earlier than the date specified for termination of spousal maintenance in the 3 September 2015 judgment.
[53] A subsidiary issue then emerges. Mr Vickerman says because Ms Arthur did not receive her full entitlements on 6 April 2017 there should be an ongoing maintenance responsibility beyond that date. He does, however, accept that having received $700,000 on 6 April 2017 there was a material change in circumstances
such that the ongoing maintenance should be prorated.15
[54] As indicated, the judgment on relationship property required in para [47](a) that maintenance be paid “to the day [on] which the monies are to be paid”. At para [48](e) the obligation was expressed in slightly different terms, namely, “until the date upon which monies are paid”.
[55] The reference in para [47](a) to “the monies” is clearly a reference to the sum
of $873,226.74 which the Judge previously identified as payable to Ms Arthur. The
15 "He says that the amount awarded by the Court should be multiplied by the following formula:
(Amount ultimately payable to Ms Arthur pursuant to this judgment - Amount paid on 6 April 2017) Amount ultimately payable to Ms Arthur pursuant to this judgment"
reference in para [48](e) to “the date upon which monies are paid” is potentially
more ambiguous.
[56] Clearly his Honour did not envisage the situation which occurred whereby there would be a dispute, a substantial amount paid but a balance sum held in trust pending further proceedings.
[57] Because his Honour’s variation to the earlier spousal maintenance orders was premised on the fact that at the point Ms Arthur received her settlement she would be able to meet her reasonable needs, it follows that receipt of a substantial part of her settlement meant that likewise a substantial part of her needs was able to be met from her own resources.
[58] The logical approach to resolution of this issue is to abate the maintenance from 6 April 2017 in accordance with Mr Vickerman’s formula, deducting from that amount the interest received on the sums held in Ms Hunter’s trust account since that time (if such is to be credited to Ms Arthur).
[59] To the extent required to meet this unexpected contingency, I allow the appeal against the variation to the maintenance order to reflect such an approach.
[60] The remaining issue is whether Ms Arthur is entitled to interest on her relationship property award from 31 May 2016 until the date of the interim and final payment. Mr Chatwin accepted that such interest was payable but such acceptance was premised on his client not being liable for spousal maintenance from the same
31 May 2016 date. Since I have held that Mr Wood’s liability for such maintenance cannot be challenged in these proceedings (other than in the limited sense indicated) there is accordingly no agreement on his part to pay interest.
[61] Mr Vickerman says that the interest payment is necessary to make his client’s entitlement whole in the sense that it is necessary to deliver an ultimate judgment of equivalent value to Ms Arthur’s entitlements on dissolution of the partnership.
[62] I do not consider it appropriate for me to make any award of interest. It was not awarded by the Family Court and Mr Wood’s appeal does not therefore engage it. Nor was there any cross-appeal on this point or any other. In that context Ms Arthur’s only interest entitlements were those under s 65A of the District Court’s Act
1947 on the sum awarded to her under the judgment.
[63] In the absence of a consent position, I do not consider I should be revisiting these issues divorced from the constraints of appeal documents. In any event, there must be a real question as to whether and to what extent the Family Court would have allowed spousal maintenance beyond the date of its judgment had it considered Ms Arthur to have an interest entitlement on the monies owing to her. It would be artificial to consider those issues unrelated.
Result
[64] I allow the appeal to the extent indicated in this decision.
[65] I give judgment on an interim basis with a view to counsel filing a consent memorandum specifying the final amount of the judgment in Ms Arthur’s favour and the appropriate division of the sums currently held in Ms Hunter’s trust account.
Costs
[66] In my view there are strong grounds to suggest that costs should lie where they fall in relation to the appeal. Clearly it was an appeal properly brought in relation to the Family Court’s categorisation of Mr Wood’s earnings, as was conceded by Ms Arthur. In other respects the appeal has been unsuccessful. However, Mr Wood himself acknowledged, even in the absence of a cross-appeal, that the Judge’s allowance for non-cash benefits received by him was inadequate. There have in that sense been wins and losses on both sides with the appeal providing a vehicle for better assessment of the respective claims.
[67] In the event that either party has a contrary view, however, this can be
addressed by memorandum at the point this judgment is made final.
Muir J
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