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Court of Appeal of New Zealand |
Last Updated: 18 August 2016
IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
AND
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First Respondent |
AND
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Second Respondent |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] This is an appeal and cross-appeal from a judgment delivered by Faire J in the High Court at Hamilton on 29 May 2015 in which the Judge made orders under the Property (Relationships) Act 1976 (the Act).[1] The case had been transferred to the High Court from the Family Court.
[2] The fact that Faire J did not formally enter judgment until 24 June 2015 resulted in disagreement between counsel as to whether this appeal was filed in time. We are clear that it was not. Pursuant to r 11.5 of the High Court Rules, the Judge gave his decision on 29 May 2015, and that is the operative date in terms of r 29(3)(b) of the Court of Appeal (Civil) Rules 2005. However, the respondent does not object to an extension of time for the appeal and we grant this pursuant to r 29A(2)(a).
[3] When their marriage ended the parties agreed to equal sharing of their relationship property but they disagreed on several aspects of the implementation of equal sharing. The judgment of the High Court dealt with the disputed matters. Four questions require decision on these appeals:
- (a) Occupation rent: Did the Judge err in holding the appellant husband was not entitled to occupation rent for the period of about two and a half years from the parties’ separation during which the respondent wife continued to occupy the family home owned by the family trust?
- (b) Post-separation contributions: Was there error in the Judge’s decision not to make an allowance to the appellant for the financial contributions he made to the respondent post-separation? If yes, the respondent cross-appeals on the ground the Judge was wrong to refuse to award her interest on the super profits the appellant earned from his law firm.
- (c) Economic disparity: The Judge made an allowance to the respondent under s 15 of the Act. Was he wrong to do this?
- (d) Costs: Did Faire J err in awarding the respondent costs?
[4] Before dealing with these questions we set out some general background. We will expand on factual matters where necessary in dealing with each question.
Background
[5] The parties married in November 1984. At the time the appellant was a partner in a Rotorua law firm and had an interest in a residential property in Rotorua. The respondent was living and working in Tauranga and owned a house property there.
[6] Following their marriage the parties each sold their separate property and, together, bought a home in Rotorua in which they lived for the next six or so years. During that time their two children were born, the first in 1993 and the second in the following year.
[7] In 1998 the appellant resigned from his Rotorua firm and joined a Tauranga firm as a partner. The Rotorua family home was sold and a new home in Tauranga purchased in 1998 by a family trust which the parties had together formed upon their shift to Tauranga. The parties and their accountant were the trustees. In 2001 the trust acquired a second residential property in Tauranga and sold the first property. After being substantially renovated, the new property became the “family home”[2] to which the claim for occupation rent related.
[8] The parties separated in February 2009. The respondent remained in the family home owned by the trust with the two children for some two and a half years, until it was sold by the trust in August 2011. One of the children had, in 2007, been diagnosed as suffering from a serious illness. The treatment for this was successfully completed by June 2009.
[9] In August 2014, the trustees resolved to wind up the family trust and distribute the trust funds equally to the parties.
First question: Error in not allowing occupation rental?
[10] This first question arises from Faire J’s dismissal of the appellant’s claim that he should be allowed occupation rental for the post-separation two and a half year period during which the respondent occupied the family home owned by the trust before it was sold.
[11] Faire J found this claim untenable. He noted Mr McKechnie had advanced the claim under s 18B of the Act. The Judge acknowledged the Court had, in a number of cases, exercised its s 18B jurisdiction to make an allowance to one spouse where the other spouse had exclusive possession of the parties’ family home. However, the Judge pointed out that s 18B cannot be applied here because the family home was not relationship property: it was owned by the family trust.
[12] Acknowledging this difficulty, Mr McKechnie had sought, in closing submissions to the Judge, to rely on s 44C of the Act as the basis for the appellant’s claim for occupation rent. Having received further submissions, the Judge held s 44C was equally unavailable as a basis for the occupation rent claim. Section 44C applies where, during their marriage, either or both spouses had disposed of relationship property to a trust. That had not occurred here. Rather, the trust had purchased and, throughout, owned the property in respect of which the appellant claimed occupation rent. There simply had not been a disposal of relationship property, in particular the family home, by the parties to the trust.
[13] Although in his written submissions on appeal Mr McKechnie set out s 18B, his oral argument founded this claim squarely on s 44C.
[14] Mr McKechnie sought to bring the respondent’s claim for occupation rent within s 44C by pointing out that the source of the monies used by the trust to purchase the first, and then the second, family home in Tauranga was relationship property. That source was a combination of the proceeds of the sale of the family home in Rotorua and a loan the parties made to the trust. Assuming that is correct, it does not have the result that the second family home in Tauranga purchased by the trust somehow itself became relationship property, so as to found a claim for occupation rent under s 18B and/or s 44C. All it does is reinforce the fact that the parties made deliberate, successive decisions to form a family trust, and then to advance monies to the trust to enable the trust to acquire and own the two successive homes in Tauranga in which the parties lived with their children.
[15] Any decision to charge rent for the property post separation was for the trustees to take and, as the Judge noted, they did not decide to charge rental.[3]
[16] We consider the terms of s 44C(1) present a further obstacle to the appellant’s claim for occupation rent. The section applies only if the Court is satisfied that, during the marriage, either or both parties had disposed of relationship property to a trust and:
(b) that the disposition has the effect of defeating the claim or rights of one of the spouses ...
[17] As explained in [14] above, Mr McKechnie founded the claim for occupation rent on the fact that relationship property had been disposed of to the family trust to enable it to purchase the two successive family homes in Tauranga. But that disposition did not defeat the parties’ claims to the relationship property disposed of, because the trust funds were ultimately distributed equally to the parties.
[18] We will, in dealing with the next appeal point, consider the respondent’s argument that the question of maintenance would have arisen but for the appellant’s ongoing support of the respondent and the two children, both financial (the second issue on appeal) and in terms of their occupation of the family home owned by the trust. This argument has an obvious connection to the appellant’s claim for occupation rent.
[19] We see no error in Faire J’s dismissal of the appellant’s claim for occupation rent. Indeed, we are in no doubt the claim was untenable and was properly dismissed.
Second question: Error in not making an allowance for the appellant’s postseparation financial contributions to the respondent?
[20] After the parties separated in February 2009, they continued to operate a joint bank account until it was closed about two years later. During that period both parties made payments into and withdrawals from the account. In round figures, it is agreed:
- The appellant paid in $429,500 and withdrew $246,000, representing a net contribution of $183,500.
- The respondent deposited $51,400 and withdrew $83,300, thus withdrawing $31,900 more than she paid in.
[21] Based on this situation, pursuant to s 18B of the Act, the appellant sought an allowance or adjustment in his favour of about $100,000. Mr McKechnie explained to us that this claim was formulated in an approximate way to acknowledge the “broad-brush” approach mandated in this Court’s decision in X v X.[4]
[22] Faire J’s conclusion on this claim was:[5]
[70] ... there should, in fact, be no adjustments arising out of the withdrawals and use of the joint accounts, save for the acknowledgment made by the applicant in respect of the $18,000 figure that I have already referred to. Equally, I do not consider that the applicant is entitled to a separate allowance, being the interest of $33,000 earlier referred to in respect of the super profits. Undoubtedly, access to the joint account provided some compensation for the applicant’s lack of access to the capital, being her share of the super profits. I come to this conclusion quite independently of the position I reached in relation to the occupation rent claim because I consider that to have been something outside the scope of the court’s jurisdiction to make orders in this case.
[23] Earlier in his judgment Faire J had endorsed statements in earlier cases “to the effect that a precise accounting is not appropriate when one carries out [s 18B] exercises”.[6] Mr McKechnie accepted this, emphasising that the appellant was not seeking “microscopic accounting”, but broad-brush recognition of his much greater contribution to the joint account.
[24] Mr McKechnie also accepted the appellant had a maintenance obligation post-separation. In response to a question from the Court, he suggested 18 months was a reasonable maintenance period. Mr McKechnie felt unable to suggest what a reasonable level of maintenance for the respondent and the two children would have been over that period. Mr Hudson for the respondent was in the same position.
[25] In dealing with this s 18B claim, Faire J noted the respondent’s evidence, based on a detailed summary of her payments during the period March 2009 to August 2011, that she had withdrawn $51,193 from the joint account for the benefit of the two children and a further $34,399 to cover family and home expenses. The Judge also noted that the parties shared parenting of the two children during this period, although they were with the respondent for approximately twice the time they spent with the appellant.
[26] A further consideration is that the respondent had the rent-free use of the family home owned by the trust, and our understanding is that the appellant was meeting the outgoings on the property and paying for any necessary maintenance.
[27] In the passage we have set out in [22] above, Faire J took into account the respondent’s claim for interest of $33,000 in respect of the super profits, disallowing it because he effectively set it off against the appellant’s s 18B claim for about $100,000. Mr McKechnie was critical of this, submitting that it confused claims the Judge ought to have considered separately. For two reasons, Mr McKechnie submitted the respondent’s claim for $33,000 ought to have been disallowed rather than set off. First, it was not clear when the funds representing the super profits would have become available to the respondent, in order to fix the date from which interest should have been calculated. Second, the respondent had claimed interest at unrealistically high rates. Lastly, Mr McKechnie made the point that the respondent’s claim for $33,451, even if it could be made out, came nowhere near offsetting the appellant’s claim under s 18B for about $100,000.
[28] As Faire J noted, the parties’ evidence as to the operation of the joint account post-separation differed. The appellant stated:
In regard to our joint bank accounts, I say we had a transactional account which paid for the family living expenses. After separation I deposited significant post-separation drawings into this account. [The respondent] deposited some funds also. I ensured that [the respondent] had access to the same following separation. I believed [the respondent] would be entitled to some of these earnings post-separation as she would share in a portion possibly allocated as super profit (that then being an unknown sum) above an appropriate salary for me. I was of the view that we would be able to allocate post-separation expenditure between us at a later date thus keeping day to day living for the children and ourselves under control and without anxiety for [the respondent].
[29] The respondent’s account was this:
At the time of separation it was not suggested that either the children or I should leave the home or that it should forthwith be sold. Quite the opposite; [the appellant’s] words to me and others were “business as usual”. Both of us recognised that the children needed some stability in their lives at this time and the immediate sale of the home would not achieve that end. It was however recognised by myself that at some point of time the house would have to be sold.
[30] When asked about that “business as usual” comment, the appellant replied “there is no way I would ever have agreed to the two and a half plus years of occupation of the house and I have no recollection of the so-called “[b]usiness as usual” remarks”.
[31] The Judge did not consider either party was seeking to mislead the Court as to precisely what had been agreed post-separation. He pointed out that it was a stressful period that followed the very difficult position that had arisen with the parties’ daughter’s illness. As chronicled in [8] above, the parties separated during the latter stages of the daughter’s successful treatment. A further point, which the Judge perhaps deliberately did not mention, is that the separation had a serious impact on the respondent’s health. The appellant referred to this in his evidence, in the course of explaining the joint account arrangements.
[32] An award under s 18B is another discretionary aspect of the Act: “the court, if it considers it just, may” make an award. We are not satisfied that the appellant has established Faire J erred in exercising his discretion so as to decline the appellant’s application for an award under s 18B. Five things have led us to that conclusion. First, we endorse the Judge’s view that a broad-brush rather than a “precise accounting” approach is appropriate.[7] In the circumstances here, the Judge was justified in using a particularly broad brush.
[33] Secondly, we see no error in Faire J setting off the respondent’s $33,000 claim for interest on her share of the super profits against the appellant’s claim for his considerably greater contributions to the joint account. There is no indication that Faire J allowed a total set off for that claim; he merely thought it appropriate to deal with the opposing claims together.
[34] Thirdly, as Mr McKechnie accepts, the appellant had an obligation to maintain the respondent and the parties’ two children for a reasonable period postseparation. Because counsel were not in a position to make submissions about the appropriate level of maintenance, we are unable to hold that the appellant’s contributions did not roughly equate to a reasonable level of maintenance.
[35] Fourthly, the respondent’s position was that the appellant had told her and others that the continued operation of the parties’ joint account was “business as usual”. Although the appellant cannot recall making that comment, it seems to us that the continued operation of the joint account for about two years post-separation was indeed “business as usual”. We have pointed to the various reasons, emerging from the evidence, that were likely to have influenced the appellant to continue operating the joint account as before. His approach was undoubtedly generous and that reflects well on him.
[36] Fifthly, the Judge made the point that prior to the issue of this proceeding by the respondent, the appellant had not sought a refund of the contributions he had made to the joint account.[8] Mr McKechnie submitted this did not stand in the way of the appellant’s claim. We accept that, but it does indicate that the appellant is now attempting to unravel a situation to which he contributed quite freely over a lengthy period post-separation.
[37] All of this means it is unnecessary for us to consider the respondent’s crossappeal.
Third question: Error in the Judge making an economic disparity award?
[38] The principles governing a claim under s 15 of the Act are comprehensively set out in this Court’s decisions in M v B and X v X.[9] For that reason, and also because there is no challenge to Faire J’s exposition of the principles, we need not set them out here. It suffices to state that the three elements of an assessment under s 15(2) are:[10]
- (a) The court must make a finding as to the likely income and living standards of each spouse.
- (b) There must be a significant disparity between the likely income and living standards.
- (c) The division of functions within the marriage must have been causative of the disparity.
If (b) and (c) are satisfied, s 15(3) gives the court discretion to order the betteroff party to pay a lump sum to the other party, if it considers that just.
[39] Having extensively reviewed the facts emerging from the evidence he heard, Faire J stated:[11]
... I am satisfied that there is a causal link between the division of functions in [the parties’] relationship and the economic disparity that now exists. I am satisfied that there is jurisdiction to make an award under s 15.
[40] For the purposes of the s 15 claim, each party engaged an accounting expert. The two experts placed a joint statement before Faire J, in which they set out four scenarios. The end figure produced by those scenarios ranged between (in round numbers) $98,000 and $45,000. Each of those figures represented one-half of the total value of the disparity, as mandated in the majority judgment of this Court in X v X.[12]
[41] Faire J’s decision on this aspect of the claim was:
[104] I regard the joint report as helpful in giving the court guidance in an overall way as to the area in which quantum could be fixed. The exercise is not a precise science. No one scenario is clearly right and the other clearly wrong. The check I asked the accountants to complete, and which is scenario 4, does produce a clinical answer in terms of the precise calculations methodology that have been used in previous cases. That said, the range in this case is not substantial. When I bear in mind the overall circumstances of the parties and all considerations of the case, I consider a just award as $65,000. There is no precise mathematical calculation that justifies this conclusion, but it takes into account the four scenarios which the experts advanced and is a figure that I arrive at standing back and taking an overall view of the evidence that has been advanced.
[42] There is broad, though not complete, agreement as to the likely income and living standards of each of the parties after their separation in 2009. Scenario 4 gives the estimated actual income of the respondent from 2009 through to 2025. Over that period it rises from $45,676 to $92,003 per annum. In his judgment, Faire J states that the appellant’s salary in 2013 was $300,500 plus a right to a significant contribution to a superannuation scheme of his choice.[13] By contrast, the respondent’s income in 2013 was recorded as $56,577 (it is estimated in scenario 4 as $53,540). That is a significant disparity.
[43] Mr McKechnie did not contest the amount of the disparity. As we explain in [56] below, he did not seriously contest the quantum of the Judge’s $65,000 award. Rather, he challenged the award on the basis that the respondent had not established causation: she had not established that the division of functions within the marriage caused the disparity between likely income and living standards to which we have just referred.
[44] Further facts are required to explain this challenge. In 1989, six years after the parties were married, the respondent began studying at Waikato University for a degree in business management. She graduated with a Bachelor of Management Studies degree in 1993. As Faire J noted, to be admitted as a chartered accountant, she then needed to complete a qualifying work period in chartered accountancy and to pass two examinations set by the Institute of Chartered Accountants. Our understanding is that the period from 1993 to 1998 during which she was employed by a Rotorua accountancy firm would have met the practical experience requirement, but the respondent did not complete the required Institute examinations.
[45] Faire J accepted that this was because the parties’ two children were born around the time the respondent graduated, the first in 1993 and the second in 1994. Then the parties moved to Tauranga in 1998, necessitating the respondent resigning from the Rotorua firm.
[46] The Judge also accepted that the respondent was unable to find accounting work with a firm of chartered accountants in Tauranga. She was able to obtain work at an eye clinic. It offered the flexible work hours she needed with young children, but roughly the same level of remuneration. The respondent resigned from that position in 2000.
[47] The appellant’s challenge to the s 15 award is based on the respondent’s resignation from the eye clinic in 2000 coupled with the fact that she did not again work in paid employment until September 2009, some six months after the parties separated. At that point she obtained a position with a legal publisher.
[48] Essentially, Mr McKechnie submitted that it was the respondent’s own choice to resign from her employment at the eye clinic in 2000 and not to take paid employment again until September 2009. It was her choice, during that lengthy period, not to complete the Institute of Chartered Accountants examinations and not to pursue the career as a chartered accountant for which she had qualified herself, save only for the Institute examinations. Mr McKechnie put it quite bluntly by contending that the respondent had, following her resignation in 2000, chosen to live a life of leisure. Consequently, it was the respondent’s own choice not to pursue her career, rather than any agreed division of functions within the marriage, that was causative of the disparity in likely income and living standards on which the Judge based his $65,000 award.
[49] Mr McKechnie referred us to the parties’ divergent evidence on this. The respondent stated:
- After 2 years [with the eye clinic] I resigned. The Clinic wanted a fulltime manager. My commitments to the family precluded me from taking up this role.
- I decided that I would try and get back into an accounting firm and to pursue my professional qualifications. Despite looking I was not able to find any suitable position although I have to say that I was not fully committed to that course as I did not want to be working fulltime. I felt I owed it to the children to be available for them. Further financially we were well off financially. [The appellant’s] income from the practice was such that further income from me, while a benefit was not a necessity. We already had a comfortable lifestyle.
- [The appellant] did not force the issue about me returning to work. While we never actually sat down and discussed it in detail there was an implicit understanding that the decision was mine as to when I should return to the workforce but in the meantime it was important for the children for me to be around.
[50] The appellant’s version was this:
- ... I am concerned [the respondent] is misleading the court in her evidence. [Our daughter] was 5 years old and [our son] was 4 when we moved to Tauranga in 1998. We had previously had nannies/housekeepers and upon moving to Tauranga we had a nanny for one year. The children were in day care for much of the rest of the time. This meant that [the respondent] was free to move her career forward. However she made it plain that she was no longer interested in becoming a chartered accountant. She considered that her working full-time was not, in any way, an imperative as by this time my income was very comfortable.
45.1 ... I clearly remember having discussions with [the respondent] and feeling very disappointed and somewhat frustrated that what she was saying was that the career she had earlier identified as a goal and reason for taking four years out of the workforce to obtain a degree was no longer of interest to her. Ultimately, by her choice, and notwithstanding my contrary view about her pursuing a career [the respondent] obtained an administration job at [the eye clinic] where she worked for a couple of years.
[51] The Judge preferred the respondent’s account of what happened. These are the relevant paragraphs in the judgment:[14]
[76] The [respondent] expressed the opinion as one of facing reality. She said she “would have dearly loved and would have followed up” advancing her chartered accountant’s status. She anticipated that this would be possible when the children were at secondary school. However, the parties’ daughter was diagnosed with [a serious illness] in 2007 when she was aged 13 years. That, clearly, restricted the possibilities of advancing an accountancy career.
[77] The move to [Tauranga], as a result of the [appellant’s] successful firm there, meant that there was no need for the [respondent] to work and, understandably, she turned greater attention to the children, their education and their activities.
...
[80] In terms of the [respondent] developing her career options postseparation, one has to take into account her age. By the time of the separation she was approximately 49/50 years of age. She referred to an interview with a chartered accountancy firm where she said she had been told her age would tell against her advancement as a chartered accountant.
[52] We consider the Judge’s factual findings are sound. Shortly after the respondent resigned from the eye clinic, the family trust purchased the second residential property in Tauranga. This property required substantial renovation. Mr McKechnie accepted that the respondent had been closely involved in organising and overseeing those renovations.
[53] Further, the parties’ children were six and seven years old at the time. This passage in Mr McKechnie’s cross-examination of the respondent is relevant:
- ... I never changed my mind about being a chartered accountant then.
- Then.
- Mhm, events just unfolded that way. I believed I could do it all. I then looked [for a] financial accounting job, any accounting job but there were no part-time or even flexi-time options at that time, and as I became more involved with the children’s school, was voted onto the Board of Trustees I slowly put my career aspirations on the back burner. As the children got older, I assumed I would go back to the accounting (inaudible 12:11:04) eventually but real life is never that hard and fast. Secondary school would’ve definitely provided the impetus as parents of a necessity, less involved at school and children learn to drive themselves to the various activities they’re involved with. The life changer was [our daughter’s] diagnosis of [a serious illness] on the day before she was due to start secondary school.
[54] As we have noted, the parties’ daughter’s diagnosis of a serious illness in February 2007 was followed by two years of treatment, ending successfully in June 2009. The parties’ separation came toward the end of this period, in February 2009.
[55] All of this, in our view, supports Faire J’s finding that there was the required causal link between the division of functions in the parties’ marriage and the significant disparity between their likely income and living standards following the end of their marriage.
[56] Although Mr McKechnie may not have accepted the $65,000 quantum of the s 15 award, he could not advance any real criticisms of it. The award is slightly below the mid-point ($71,500) of the $98,000–$45,000 range of the four scenarios presented by the parties’ expert accounting witnesses. The formula used in scenario 4, to which Faire J seems drawn, is that suggested by the majority of this Court in X v X.[15]
[57] Accordingly, we uphold the $65,000 award to the respondent under s 15.
Fourth question: Error in the Judge’s costs award?
[58] At the end of the substantive judgment he delivered on 29 May 2015, Faire J said this about costs:[16]
[108] I also reserve the question of costs. In so reserving costs I record that having regard to the issues that arose in this case, it was inevitable that the parties would have to seek the court’s assistance and, indeed, a number of important matters were not clearly available until the case was presented for trial. Although I make no final determination on the matter, there is at least some support for the proposition that costs should lie where they fall. Nevertheless, this is no final determination of the costs issue, which is accordingly reserved.
[59] Then, in an oral judgment on 24 June 2015, Faire J entered judgment against the appellant in the sum of $300,263.[17] In a minute issued with that judgment, the Judge advised he would issue a separate judgment dealing with costs. He did that on 26 June 2015, having received memoranda and after hearing short oral submissions from counsel at the conference he had with them on 24 June.[18] In the result, the Judge ordered the appellant to pay the respondent costs of $15,684 plus disbursements of $17,275.42.
[60] Mr McKechnie advanced two challenges to this costs order. First, he submitted the Judge had taken a proper, albeit tentative, view of costs at the end of his substantive judgment and then, seemingly overlooking that view, had erred in subsequently making an order. There is nothing in this point. Although expressing a tentative view, the Judge expressly made no final determination as to costs, but reserved them. He was entitled to change his mind, which he did for the reasons given in his costs decision.
[61] Secondly, Mr McKechnie complained that there had been no inquiry into the fees of the respondent’s expert accounting witness, Mr Dobson. For two reasons Mr McKechnie submitted Mr Dobson’s fees seemed excessive. First, the two affidavits Mr Dobson had filed were comparatively short. Secondly, the $65,000 award the Judge had made under s 15 was much closer to the $61,123 award suggested in scenario 4 (which was closer to the approach taken by Mr Lyne, the expert witness called by the appellant), than it was to the $98,287 suggested in scenario 1 (which was closer to Mr Dobson’s approach) in the expert accounting witnesses’ joint statement.
[62] If Mr McKechnie considered Mr Dobson’s fees were excessive, he needed to make that submission to the Judge, and set out the basis for the submission. It is too late to make that submission to us. Quite apart from that, when we inquired of Mr McKechnie what Mr Lyne’s fees had been, he did not know. Further, the Judge expressly dealt with Mr McKechnie’s second point:[19]
[21] Mr Dobson used the correct approach, although the answer I adopted was less than he advanced. I am not satisfied that there is a proper basis for reducing the claim for his disbursement cost in this case. I propose, therefore, to allow them.
[63] For those reasons, this last point on appeal also fails.
Result
[64] None of the four points on appeal has succeeded. The appeal is accordingly dismissed.
[65] The appellant is to pay the respondent’s costs for a standard appeal on a band A basis plus usual disbursements.
Suppression
[66] Having invited and received submissions from counsel, we decline the appellant’s request to anonymise this judgment in the same manner as Faire J had. The respondent is arguably a vulnerable person within the meaning of s 11D of the Family Courts Act 1980 and had she sought anonymity we would have been receptive to her application. But she expressly does not seek anonymity. The legislation affords no other basis for granting it.
Solicitors:
Bush Forbes, Tauranga for
Appellant
MacKenzie Elvin, Tauranga for First Respondent
Fenton McFadden,
Te Puke for Second Respondent
[1] X v Y [2015] NZHC 1166 [High Court judgment].
[2] The quotation marks are to convey that we do not, in this judgment, use the term “family home” as it is used in the Property (Relationships) Act 1976, in particular the definition in s 2 and the division provisions in ss 11(1)(a), 11A and 11B, because the home in this case was owned by a trust.
[3] High Court judgment, above n 1, at [50].
[4] X v X [2009] NZCA 399, [2010] 1 NZLR 601 at [157].
[5] High Court judgment, above n 1.
[6] At [69], referring to X v X, above n 4, at [157] and A v A [2008] NZFLR 297 (HC) at [24].
[7] High Court judgment, above n 1, at [69].
[8] At [62].
[9] M v B [2006] 3 NZLR 660 (CA); X v X, above n 4.
[10] X v X, above n 4, at [77].
[11] High Court judgment, above n 1, at [90].
[12] X v X, above n 4, at [229]–[233].
[13] High Court judgment, above n 1, at [81].
[14] High Court judgment, above n 1.
[15] X v X, above n 4, at [180].
[16] High Court judgment, above n 1.
[17] X v Y [2015] NZHC 1436.
[18] X v Y [2015] NZHC 1453.
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