English v Vorstman CA166/98 [1998] NZCA 232 (16 November 1998)

Last Updated: 5 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 166/98

BETWEEN WILLIAM LANDON ENGLISH Appellant

AND LESLEY VORSTMAN Respondent

Coram: Thomas J Keith J Tipping J

Hearing: 16 November 1998

Counsel: M L Wright for Appellant

R H K Jerram for Respondent

_{Judgment: 16 November 1998}

_{JUDGMENT OF THE COURT DELIVERED BY THOMAS J}

The appellant and respondent were involved in a matrimonial property dispute in the Family Court. The dispute was heard by Twaddle DCJ. He delivered his decision on 29 October 1997. The appellant appealed to the High Court against that decision and the respondent cross-appealed. The appeal was heard by Salmon J. He delivered a judgment on 17 June 1998 in which he dismissed the appellant’s appeal and allowed the respondent’s cross-appeal in part. The appellant then sought the leave of the High Court to appeal to this Court against Salmon J’s decision. The application came before Hammond J. In a decision dated 21 August 1998, the learned Judge refused leave. The appellant now seeks the leave of this Court.

The background to the matter is fully set out in the judgment of Hammond J

and may be conveniently repeated:

Background

The parties separated on 31 May 1994, after a marriage of four years and two months duration. Matrimonial property proceedings were filed in the District Court on 28 March 1995, and finally heard in June and July of

1997. There had been a good deal of interlocutory skirmishing in the interregnum, including an appeal to this Court, which was later abandoned.

Twaddle DCJ delivered a reserved decision on 29 October 1997. That decision covered a number of items of matrimonial property. It classified the respondent’s employment settlement with the University of Waikato as separate property; classified three individual retirement accounts as Mr English’s separate property; classified chattels in the United States of America as separate property of Mr English (apart from a grand piano); and divided all matrimonial property 60/40 in favour of Ms Vorstman.

The practical effect of the decision was to allow Ms Vorstman to retain the matrimonial home at 6 Tarbet Road, Hamilton, but certain adjustments had to be made, resulting in her having to pay Mr English the sum of

$4,147.86, within 28 days.

Mr English then appealed against that decision, the principal grounds of appeal being directed towards the findings in the Family Court, that:

a) there were extraordinary circumstances existing to displace equal sharing of the matrimonial home and family chattels; and,

b) the finding that the contribution to the marriage partnership by Ms Vorstman was clearly greater than the contribution to the marriage partnership by Mr English, in ordering a 60/40 division in favour of Ms Vorstman.

Ms Vorstman filed a cross-appeal, directed to the findings that:

a) the employment settlement monies were the separate property of Mr English; and,

b) the home and chattels were to be divided 60/40; and,

c) the balance of matrimonial property was to be divided 60/40 in favour of Ms Vorstman, whereas Ms Vorstman believed that the balance should be divided 70/30 in her favour.

There was also an argument directed towards the finding that the chattels in the United States of America, save the grand piano, were the separate property of Mr English.

In this Court, the appeal occupied two days on 25 and 26 May. His Honour delivered a reserved decision on 17 June 1998. The Court acknowledged (with the consent of counsel, at the outset of the hearing) that there was a mistake in the calculations in the Family Court decision, and that the amount of the payment to Mr English should be $3,439.46, instead of $4,147.86.

In the result, Ms Vorstman’s cross-appeal was allowed. She was successful insofar as His Honour found that the chattels in America (including the grand piano) were matrimonial property, and the combined value of the chattels was $34,881.66.

Ms Vorstman also succeeded in persuading His Honour that she was entitled to interest on the amount due to her, at the rate of 9% from the date of separation to the date of judgment; and 11% thereafter. The finding that the matrimonial property should be divided in a 60/40 ratio in favour of Ms Vorstman, was upheld by the High Court.

The points sought to be advanced to the Court of Appeal

The applicant seeks to raise three points on appeal, namely:

a) the finding that s14 of the Matrimonial Property Act 1976 (extraordinary circumstances) applied to displace equal sharing of the matrimonial home and family chattels;

b) the finding that the contribution to the marriage partnership by the respondent was clearly greater than the contribution to the marriage partnership by the appellant, and ordering a

60/40 division of all matrimonial property in favour of the respondent;

c) the finding that the value of the appellant’s family chattels in the United States were to be converted to New Zealand dollars at the date of the appeal hearing.

Ms Wright appeared for the appellant in this Court. She argued that, although Salmon J had adopted the correct test in relation to the application of s 14, he had not applied that test correctly. Couched in these terms the argument would have no wider significance. The point would be particular to this case. But Ms Wright refined the argument. She contended that Salmon J’s finding that the common misunderstanding between the parties constituted extraordinary circumstances was wrong in law. Ignorance of the law, she argued, could not constitute extraordinary circumstances. Ms Wright further argued that what Salmon J had in essence held was that the parties

had reached an informal agreement. But to recognise that agreement, she contended, would have the effect of circumventing s 21 of the Act.

We are not persuaded by Ms Wright’s argument. The essence of Salmon J’s decision is summarised in this paragraph of his judgment:

In my view, the major circumstance which is extraordinary in this case is the expectation, of which the Judge has found that E was aware, that the home would remain V’s property. What makes that circumstance extraordinary in this case is that it governed the way the parties ordered their affairs in New Zealand. It is clear that V accepted, and indeed required, that she should have total responsibility for the house. Her view, which E accepted, was that this house which she had purchased some three years before the marriage, represented a challenge which she had set herself. In my view this combination of circumstances is extraordinary.

The circumstances which the learned Judge identified are the expectation of the parties as to how they would order their affairs and the way in which they then proceeded to do so. It is these circumstances, and not the common understanding as such, which the Judge considered extraordinary. We believe that this view was open to him. Nor do we accept that the Judge’s finding that the parties had a common understanding amounts to an informal agreement, such as would have the effect of circumventing s 21. There may be occasions when it is difficult to draw the line between an understanding which is the basis on which the parties arrange their affairs and an informal agreement, but on the Judge’s express finding this is not such a case. For these reasons we do not consider that the appeal gives rise to a significant question in law which need attract the attention of this Court.

Ms Wright readily agreed that, if she failed on this main point, the other issues which she raised in argument would not in themselves be of such significance as to warrant leave being granted.

Application for further leave to appeal is therefore refused.

The respondent is awarded costs in the sum of $2,500, together with such disbursements, including travelling and accommodation expenses, as may be agreed or, failing agreement, as are approved by the Registrar.

Solicitors

Tompkins Wake, Hamilton for Appellant

McKinnon & Co, Hamilton for Respondent