Martin v Marsh [2014] NZHC 2354 (26 September 2014)

Last Updated: 15 October 2014

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 HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4903 [2014] NZHC 2354

IN THE MATTER	of an appeal under s 39(1)(b) of the Property (Relationships) Act 1976
BETWEEN	GABRIELLE JOY MARTIN Appellant
AND	BRETT ANTHONY MARSH as administrator of the Estate of LEE CLIFFORD MARSH (Deceased) Respondent

Hearing:	25 March 2014
Counsel:	BM Ward for Appellant RC Knight and TA Chubb for Respondent
Judgment:	26 September 2014

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 26 September 2014 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Gellert Ivanson (Auckland) for Appellant

Sean Kelly Lawyers (Auckland) for Respondent

_{Counsel: RC Knight}

MARTIN v ESTATE OF MARSH [2014] NZHC 2354 [26 September 2014]

Introduction

[1] Mr Lee Marsh and Ms Gabrielle Martin knew each other from 1980 until Mr Marsh’s death in 2010. They got married in 1986 and divorced in 1991, but continued to see each other. At times, and for various periods, Ms Martin would stay with Mr Marsh at his unit in Kingsway Avenue, Mt Albert. The two enjoyed travelling overseas together. Ms Martin says that from 2000 to 2004 she lived continuously with Mr Marsh.

[2] Ms Martin had a house in Christchurch, the city to which she moved in 1988 when she and Mr Marsh first separated. Ms Martin sold the house in 2004 and bought another in Takapuna. She says that from then until 2009 she divided her time equally between her Takapuna home and Mr Marsh’s Kingsway Avenue unit.

[3] In January 2009, the relationship between Ms Martin and Mr Marsh took a turn for the worse. They ceased to have contact and, on 17 December 2010, Mr Marsh died.

[4] Mr Marsh left his estate to his mother and brothers. He made his Will in February 2006, at a time when his relationship with Ms Martin still had three years to run. He did not leave anything to Ms Martin. However, in May 2009, a few months after their relationship ended, Mr Marsh made an addendum to his Will giving permission to Ms Martin to take any personal items as mementoes.

[5] Ms Martin believes she is entitled to more than some personal items as mementoes. In her view, she and Mr Marsh were in a de facto relationship prior to their separation in January 2009, and so she is entitled to a share of his estate pursuant to the Property (Relationships) Act 1976. Her claim under that Act was heard in the Family Court at Auckland by Judge FJ Eivers in 2013.¹ The Judge decided that the relationship between Mr Marsh and Ms Martin was not a de facto

_{relationship and dismissed Ms Martin’s claim. Ms Martin now appeals that decision.}

¹ GJM v BM [2013] NZFC 3316.

Issues

[6] Ms Martin’s overall case is that if the Judge had considered the evidence properly, made the right findings of fact and applied the law correctly, she would have concluded that Mr Marsh and Ms Martin were in a de facto relationship from

2000 to 2009. Ms Martin asks me to recognise the Judge’s errors and to overturn her

decision.

[7] I take the issues to be:

(a) Did the Judge get the facts wrong? (b) Did the Judge get the law wrong?

(c) Did the Judge make mistakes of law and/or fact which mean that her conclusion is wrong?

The law

[8] In the vast majority of cases it is easy to decide that a couple is in a de facto relationship because the degree to which they share their lives makes it obvious. Yet, as a number of Judges have commented over the years, it can be anything but easy to classify a relationship as a de facto relationship if the couple concerned do not share their lives in a conventional manner. The following quotes, used by Ms Ward on

behalf of Ms Martin, suffice to make the point:²

By their very nature, disputes of this type which fall to be resolved by the Court will often arise out of the unconventional living arrangements of particular individuals. To some extent, there will always be the problem of trying to fit a square peg (representing the parties’ choices about their own living arrangements) into a round hole (representing the concept of a de facto relationship, for the purposes of the Act). Nevertheless, even in an unusual relationship, the law requires a Court to evaluate the evidence to determine whether the legal threshold is met.

_And:³

² _{B v F [2009] NZHC 1165; [2010] NZFLR 67 (HC) at [54] per Heath J.}

³ Scragg v Scott [2006] NZFLR 1076 at [31].

The complexity and diversity of human nature and behaviour is such that many types of associations may properly fall into the category of a de facto relationship as envisaged by Parliament. For there to be a relationship there must be an emotional association between two persons.

[9] Parliament has defined the meaning of de facto relationship. Since this definition is at the heart of this case, I will quote the section in full:⁴

2D Meaning of de facto relationship

(1) For the purposes of this Act, a de facto relationship is a relationship between 2 persons (whether a man and a woman, or a man and a man, or a woman and a woman)—

(a) who are both aged 18 years or older; and

(b) who live together as a couple; and

(c) who are not married to, or in a civil union with, one another. (2) In determining whether 2 persons live together as a couple, all the

circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

(a) the duration of the relationship:

(b) the nature and extent of common residence: (c) whether or not a sexual relationship exists:

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:

(e) the ownership, use, and acquisition of property:

(f) the degree of mutual commitment to a shared life: (g) the care and support of children:

(h) the performance of household duties:

(i) the reputation and public aspects of the relationship. (3) In determining whether 2 persons live together as a couple,—

(a) no finding in respect of any of the matters stated in subsection (2), or in respect of any combination of them, is to be regarded as necessary; and

(b) a Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.

⁴ Property (Relationships) Act 1976, s 2D.

(4) For the purposes of this Act, a de facto relationship ends if—

(a) the de facto partners cease to live together as a couple; or

(b) one of the de facto partners dies.

[10] As is apparent, the inquiry must be whether, in the relevant period, the two people lived together as a couple.⁵ There is no legal touchstone. It is a matter of assessing, holistically, the quality of a couple’s relationship. The factors listed in s 2D(2) must be taken into account to the extent relevant, but they are neither exhaustive nor determinant.

Did the Judge get the facts wrong?

[11] The Judge had to choose between competing descriptions of the relationship of Mr Marsh and Ms Martin. Ms Martin’s evidence was that from 2000 to 2009, she was in a constant, and intimate, relationship with Mr Marsh. From 2000 to 2004, she lived with him continuously at his Kingsway Avenue unit. Thereafter, she divided her time equally between the Takapuna house she bought in 2004 and the Kingsway Avenue unit. The purchase of the Takapuna house was in response to the difficulties in their relationship. It put needed space between them and actually enabled their relationship to continue.

[12] The witnesses called on behalf of Mr Marsh’s estate painted a different picture. Mr Marsh’s mother, two brothers and a number of his long-term, if not life- long, friends gave evidence to the effect that the relationship was a volatile, on/off one. Most of them accepted there was a sexual component to it, and Mr Marsh’s mother accepted that up to 2004 the two cohabited at Kingsway Avenue. But none of the witnesses thought there was a continuous relationship after that. For most of them, Ms Martin barely featured in their social activities with Mr Marsh.

[13] The Judge did not make adverse findings of credibility. Her Honour

_{considered that all witnesses “gave their evidence in an honest and forthright}

⁵ If the couple live together for less than three years that will be a de facto relationship of short duration and the Property Relationships Act 1976 will not apply except in a narrow set of circumstances see s 14A.

manner”.⁶ The Judge’s decision was based on her overall evaluation of the facts she accepted, against the legal principles to which she referred. The Judge summarises her findings as follows:

[35] What appeared to me on the evidence is that of an on again off again relationship akin to a friendship, with the parties at all times financially and in every other respect independent. This is very much apparent on reading the emails sent to Gabrielle from Lee when he was on holiday – more the conversation of friends than lovers. There was an emotional history between the parties (their earlier marriage and subsequent separation and dissolution) and thus a connection that included it would seem the continuation of a sexual relationship at times when they were together.

[36] It is clear that on occasion during this period from 2000-2009 that Gabrielle stayed with Lee at the Kingsway unit but this seemed to be more a matter of convenience when she would come to live in Auckland for work. The evidence from family, to whom Lee was close, and his many friends, point to the fact that Gabrielle was a companion and occasional partner. She would come in and out of Lee’s life: he would look after her in times of crisis and he felt a responsibility to help her out when she needed assistance. Following the logic of Heath J in the B v F decision, property consequences do not flow from the relationship between Gabrielle and Lee as the evidence is not indicative of an intent to share property. Further, in my view the indices in s 2D(2) are noticeably absent in the evidence.

[14] Ms Ward for Ms Martin submits that the Judge did not weigh significant credibility issues and inconsistencies that arose during the cross-examination of witnesses. In her submission, there was more than sufficient evidence that Ms Martin and Mr Marsh lived together at the Kingsway unit from 2000 to 2004. The Judge should not have found that Ms Martin’s purchase and exclusive occupation of the Takapuna property was evidence that she and Mr Marsh were not in a de facto relationship.

[15] Ms Ward points to what she submits are important factual errors made by the

Judge which affected the Judge’s decision:

(a) That Mr Marsh never went to the Takapuna property. The evidence of

Ms Martin, and Mr Marsh’s mother, is that Mr Marsh did occasionally go to the Takapuna property, but chose not to go inside.

⁶ GJM v BM, above n 1, at [18].

(b) That Ms Martin did not pursue Mr Marsh’s personal interest in horse racing. There is evidence from Ms Martin and the respondent’s witnesses that, to an extent, Ms Martin was involved in Mr Marsh’s horse racing activities.

(c) The Judge said that the evidence “spans over 15 years”. In fact, it spans a period of over 30 years. The Judge said that Ms Martin’s son gave evidence that he visited his mother at the Kingsway property post 2002 but once she bought the Takapuna property in 2004 that is where he visited her. In fact, Ms Martin’s son gave evidence that he

visited her at the Kingsway property (an “odd exception”)⁷ after she

bought the Takapuna property.

[16] Ms Ward submits, further, that the Judge failed to take into account, or took insufficient account of, the evidence which showed a closer and more exclusive relationship than the Judge was prepared to find. Ms Ward points to the evidence of Ms Martin’s son, Amon, of Ms Margaret, Ms Ross, Mr Parle, Ms Berge and Ms Simpson. In Ms Ward’s submission, the Judge was wrong to dismiss much of their evidence as hearsay because it supports the reliability and truthfulness of the

appellant’s evidence “and therein lies its probative value”.⁸

[17] The evidence included a number of emails that Mr Marsh had sent to Ms Martin. The Judge afforded these emails little weight. Ms Ward submits the Judge should have read the emails in the context of all of the other evidence. For example, an email from Mr Marsh to Ms Martin on 4 September 2008 (when Mr Marsh was on holiday overseas) says:

Poppy, when my cellphone software died I lost your photo in it. Maybe you could send a PXT to it and I can save it to look at.

[18] In Ms Ward’s submission:

Not only did this pet name surprise some of the respondent’s more candid

_{witnesses, the fact he wanted a photo of her seems quite unlike him and at}

⁷ _{Notes of evidence, at 76.}

⁸ Submissions of counsel for appellant for appeal to be heard 25 March 2014, dated 7 March

2014, at 67.

odds with what they understood the parties’ relationship to be. This goes a long way to support the appellant’s claim; there can be no doubting there was a romantic link in 2008. It also advances the appellant’s point that the deceased kept his personal life private.

[19] Ms Ward notes that the Judge did not refer to the addendum which Mr Marsh made to his Will in May 2009, some months after he and Ms Martin had separated. This is the addendum which permitted Ms Martin to take any personal items as mementoes. Further, in an undated “personal register” prepared by the deceased on his computer some time around 2006, Ms Martin was named as the family support person in the event of Mr Marsh’s death. In Ms Ward’s submission, these are important indicators of the nature of the relationship between Mr Marsh and Ms Martin.

[20] Ms Ward submitted that the Judge misdirected herself on the significance of the evidence of Mr Marsh’s lawyer, Mr Kelly. It is not surprising that Mr Marsh did not mention Ms Martin when giving instructions to Mr Kelly because, other than when he made his Will, he was not living with Ms Martin at the relevant times. Further, when Mr Kelly met Mr Marsh on 29 October 2010 to discuss the proposed sale of the Kingsway property, Mr Marsh told him that he had been “single for the past two years”. The inference to be drawn is that two years before (which was the point where he and Ms Martin finally separated) he was not single.

[21] Appeals from relationship property decisions of the Family Court are governed by s 39 of the Property (Relationships) Act 1976. They are conducted by way of rehearing and are a general appeal. Applying the approach described by the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar,⁹ the appellant must persuade this Court that the decision of the Family Court is wrong. I am not required to defer to the Family Court Judge’s views, but “customary” caution is appropriate when the facts found by the trial Judge turn on issues of credibility. I have the responsibility of arriving at my own assessment of the merits of Ms Martin’s case.

[22] Ms Ward has made lengthy submissions going into the very detail of the case. The Judge, however, had to stand back and see the evidence as a whole. I agree with

⁹ Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 (SC) at [4].

Ms Ward that the Judge’s decision is conclusionary rather than evaluative and that her Honour does not explain how she reconciled or determined conflicts in the evidence.

[23] The evidence of Ms Martin, if accepted, would have established constant cohabitation from 2000 until 2004, and a continuing but part-time cohabitation from

2004 until the beginning of 2009. It is clear that the Judge did not accept

Ms Martin’s evidence in this regard.

[24] I have read the affidavits and the transcript of evidence and I have considered the detailed submissions of counsel against the findings of the Judge. I bear firmly in mind that the onus of proof is on Ms Martin. I turn now to the evidence which goes against Ms Martin’s case.

The respondent’s evidence

[25] Mr Brett Marsh is Mr Marsh’s older brother. In his affidavit of 1 November

2011, he gives his view of the relationship between Ms Martin and Mr Marsh. Mr Brett Marsh deposes that he was close to Mr Marsh and the two were in regular contact. He does not recall Mr Martin talking to him about his relationship with Ms Martin during the 2000-2009 period. He saw no evidence that Mr Marsh was living with anyone at the time. He says:¹⁰

There was no “footprint” of a partner’s presence, much less that of a casual friend/acquaintance. I saw no women’s clothing in the home, nor items of a personal nature, no additional food or household supplies beyond that would be adequate for one person. All I ever saw in Lee’s home were his things.

[26] Mr Brett Marsh accepts there was an unsettled period between 2000 to 2004 when Ms Martin stayed at Mr Marsh’s house from time to time. He characterises their relationship as being more like a casual lodger. He deposes:¹¹

At least 12 months before his death, Lee told me that Gabrielle had been out of his life for a long time. I cannot recall how the discussion came about, but I was struck by the vehemency with which he expressed himself. I had always known that Gabrielle had washed in and out of Lee’s life, but as I

¹⁰ First narrative affidavit of Brett Anthony Marsh in support of notice of defence, dated

_{1 November 2011, at [13].}

¹¹ At [21].

have said earlier, there was no indication that I could see that they were ever living together as a couple during the period 2004 to the date of his death or even before that.

[27] In cross-examination at the trial, Mr Brett Marsh said he had no doubt that Mr Marsh and Ms Martin were in a relationship. It was his view, however, that it was not a relationship in the nature of a marriage or a de facto union. With reference to his ability to judge the quality of the relationship, he denied that he was seldom at the flat during the period 2000-2004 or that he and Mr Marsh visited each other on a

50/50 basis. He agreed it was possible that as late as 2008 Ms Martin and Mr Marsh were in a sexual relationship, but he did not know. He did not accept that after Ms Martin bought her house in Takapuna she spent half her time there and half her time with Mr Marsh:¹²

Q. And you weren’t at his property on a day-to-day basis? A. No I wasn’t.

Q. Or a weekly basis?

A. It would be getting on close for a weekly to fortnightly basis yes.

Q. Was that more at the very end of his life? A. No.

Q. You’re saying it was constant?

A. Pretty much yes.

Q. It’s still possible though isn’t it that he was in a relationship with her

and they did have that arrangement?

A. It’s possible but the frequency of visits and the conversations meant there should’ve been evidence of Gabrielle being there or her being present, and –

Q. In her – sorry?

A. - and I didn’t see that.

[28] At a later stage in the evidence, there was the following exchange:¹³

Q. And unlike other witnesses that have given evidence are you saying that there was never a time between 2000 and 2009 that they were living in a permanent relationship?

A. Um, what I’m saying is that Gabrielle was staying with Lee on and

off during that period but it’s not a relationship that I would regard

_{as being a de facto or a marriage.}

¹² _{Notes of evidence, at 244-245.}

¹³ At 250.

[29] Later in cross-examination, Ms Ward asked Mr Brett Marsh about the number of occasions during the relevant period where Mr Brett Marsh could remember Ms Martin being in Mr Marsh’s company. Mr Brett Marsh said he could recall perhaps six occasions, formal or informal, and on a number of those occasions Ms Martin was not living with Mr Marsh. He referred, in particular, to a cousin’s wedding which took place in the early 2000s. On that occasion, he and his wife picked Mr Marsh up at his Kingsway Avenue unit and went to the function. Ms Martin was not staying with Mr Marsh at that point. She did attend the wedding, but she came separately.

[30] Mr and Mrs Brooking made a joint affidavit on 13 February 2012. Mr Brooking met Mr Marsh at secondary school and was his friend for more than

40 years. They travelled overseas together and socialised regularly. In 2006, Mr Marsh went with Mr and Mrs Brooking and a group of friends to the Melbourne Cup.

[31] Mr and Mrs Brooking said that after the divorce, and Ms Martin’s move to Christchurch, Ms Martin would return to Auckland from time to time and occasionally she and Mr Marsh would visit together:¹⁴

... But from 2000 onwards, Lee usually visited us alone. In the five years prior to the date of his death, we rarely saw Gabrielle and Lee together, and Lee never spoke of her unless we enquired after her.

[32] Mr and Mrs Brooking deposed that they went to visit Mr Marsh at his home

“approximately every two to three months”.¹⁵ They would also go out to restaurants:

Neither of us can recall a time in recent years when Gabrielle accompanied Lee. In 2006 Lee accompanied us and another four couples to the Melbourne Cup. We did not think it was unusual that Gabrielle was not with Lee as they were not a couple. In 2007/2008 a group of us including Lee went to Whangamata for New Year. Gabrielle was not part of the group which did not surprise us at all as she was not part of Lee’s life.

[33] Mr and Mrs Brooking’s impression of the relationship, through talking to

_{Mr Marsh, was that they were not sharing a life together. His accounts of Ms Martin}

14. Joint affidavit of Ross Ford Brooking and Marie Josephine Brooking in support of respondent, dated 13 February 2012, at [5].

¹⁵ At [6].

focused on her “being in some kind of mess and unhappy with her life”.¹⁶ Their evidence is summarised:¹⁷

It seemed to us, looking from the outside in over many years, that Gabrielle would arrive on Lee’s doorstep when there was a crisis in her life. She seldom stayed for long periods, and would disappear as quickly as she appeared, to sort herself out. The frequency of her visits were variable, and her absences lengthy – months – even years.

[34] Both Mr and Mrs Brooking gave evidence at the trial. In questioning from the Judge, Mr Brooking seemed to accept that there was a time when Ms Martin was living with Mr Marsh while she was teaching in Auckland. He saw them as a couple up to the point when Ms Martin moved to her house at Takapuna.

[35] Mrs Brooking accepted that Ms Martin came back from Christchurch around

1994 and there was a reconciliation with Mr Marsh. She accepted that her description of the relationship between Ms Martin and Mr Marsh as an on and off relationship could have been because during this period Ms Martin was often down in Christchurch.¹⁸ In relation to the Kingsway unit, Mrs Brooking confirmed that she saw no signs of a female living in the house. However, she never went into the study.¹⁹

[36] Mr Knight, in re-examination, made this point:²⁰

Q. Mrs Brooking, just on that last question, you visited Ms Martin’s home, or visited her at her home twice after she moved in in 2004. Correspondingly, how often would you say you visited Lee’s house in Kingsway Avenue between 2004 and 2008?

A. Uh, perhaps every two months, two to three months.

Q. And on those occasions did you see Ms Martin there? A. No, never.

[37] In answer to a question from the Judge about the relationship from 2000 through to 2008,²¹ Mrs Brooking said that they knew that Mr Marsh and Ms Martin

¹⁶ _{At [8].}

¹⁷ _{At [10].}

¹⁸ _{Notes of evidence, at 143.}

¹⁹ _{At 146.}

²⁰ _{At 154.}

²¹ At 156.

kept in contact and that they still had a friendship. They still had dinner occasionally but it was, to her, not a permanent relationship.

[38] As to the period before Ms Martin purchased her house in Takapuna, Mrs Brooking’s memory was that she thought that she was living with Mr Marsh at the Kingsway Avenue property. However, she was not sure.²² Subsequently, Mrs Brooking acknowledged that they occasionally saw Ms Martin at Mr Marsh’s property in the period before 2004. That included one occasion when they went to dinner at the Kingsway Avenue property.

[39] Mrs Brooking was one of the close friends present at Mr Marsh’s 50th birthday party in 2006. She remembered Ms Martin being there and:²³

I was very surprised to see her but I sort of looked at her and says, “Oh what are you doing here?” Yeah, I was very surprised to see her there.

[40] Mr and Mrs Mirko made a joint affidavit on 13 February 2012. They first met Mr Marsh in the early 1990s when he became a work colleague of Mrs Mirko. They remained close friends from that time down to the date of Mr Marsh’s death. They described their relationship with Mr Marsh as being like members of the same family. They socialised at least four or five times a month, mostly at each others’ homes. They were among the close friends who celebrated Mr Marsh’s 50th birthday with him in 2006.

[41] Mr and Mrs Mirko were surprised to learn that Ms Martin claimed to have lived in a continuous relationship with Mr Marsh between 2000 and 2009:²⁴

... For our part, we saw no evidence of what is alleged in any of our social interactions with Lee. We saw no evidence of her presence at his home (clothing, personal effects, and the like), nor did she accompany him to the other social events that we had with him on a routinely regular basis. She was not present at the New Year’s Day race event in 2008 referred to.

[42] Mr Mirko referred to an occasion in 2009 when he and Mr Marsh were driving to a race meeting in Ruakaka. Mr Marsh spoke to Mr Mirko about his Will.

²² _{At 158.}

²³ _{At 159.}

24. Joint affidavit of Harold William George Mirko and Patricia Mary Mirko in support of respondent, dated 13 February 2012, at [4].

During the course of the conversation, Mr Mirko asked Mr Marsh whether he had made any provision for Ms Martin:²⁵

... He told me emphatically that he had not; that he had provided more than enough financial support for her over the years. In the same discussion, I asked whether he saw much of Gabrielle. He said words to the effect “not a lot – just on and off”. He went on to say that he did not have any intention of getting back into a serious relationship with Gabrielle, and that he was pleased that she had bought her own place in Takapuna.

[43] In cross-examination, Mr Mirko agreed that on occasions Ms Martin accompanied Mr Marsh to Mr and Mrs Mirko’s home when they were entertaining. He agreed that Ms Martin took an interest in the horse racing activities of Mr Mirko and Mr Marsh. However, he could recall only a few times when Ms Martin went to race meetings over the years.

[44] Mr Mirko was asked about the trip to Ruakaka during which Mr Marsh’s Will was discussed. He put the date of that trip as 31 July 2009 because he had consulted his diary. He agreed that during the conversation – which occurred after the final separation of Mr Marsh and Ms Martin – Mr Marsh did not mention the addendum to his Will which was prepared in May 2009.

[45] Ms Ward put to Mr Mirko the evidence of Ms Martin that from the time she purchased the property in Takapuna she continued to live with Mr Marsh at the Kingsway Avenue property for half the week. Mr Mirko was not aware of that and had never been told that that was occurring. He agreed that Mr Marsh did not really like to talk about his relationships and volunteered that they never pried into Mr Marsh’s private life. He was not aware, for example, that Mr Marsh’s pet name for Ms Martin was “Poppy”. He was surprised by an email sent by Mr Marsh to Ms Martin while he was in Sri Lanka asking Ms Martin to send a replacement photograph so he could save it to look at on his cellphone.

[46] The effect of the cross-examination of Mr Mirko can be found in the following exchange towards its end:²⁶

²⁵ _{At [6].}

²⁶ Notes of evidence, at 138.

Q. Would it be fair to say that you can’t be certain that Gabrielle and

Lee reconciled between 1995 and 1999, and again between 2000,

2009?

A. Um, I saw no evidence of it, only a spasmodic off-and-on thing.

That’s it, that’s the way I found it.

Q. But based on what you know about Lee, and him being private, and keep everything in boxes, if you like –

A. Yeah.

Q. – is it possible that there was a relationship and you were not told about it? It was kept away from you to a degree?

A. No, I don’t think so.

[47] Mrs Mirko gave evidence also. Mrs Mirko confirmed the frequency of their regular social interaction with Mr Marsh. She confirmed also that Ms Martin accompanied Mr Marsh only occasionally. On the other hand, Mrs Mirko said that they had only been once to the Kingsway Avenue address for a meal. Mrs Mirko also recalled a time, in the vicinity of 2005-2006, when Mr Marsh’s horse won a race. Ms Martin was present at the time and afterwards Mrs Mirko slipped on the ramp at Mr Marsh’s Kingsway Avenue property and broke her ankle. Mrs Mirko was asked:

Q. When you were at the Kingsway property, did you see anything in there to suggest that Lee and Gabrielle were living together as a couple in that property?

A. Well, no, I didn’t really, I didn’t know what the arrangement was. I never ever really knew if they were together or they weren’t. I didn’t ask...

[48] Ms Ward put to Mrs Mirko that from 2000 to approximately 2004 Ms Martin worked for ACG and during that period she was living at the Kingsway Avenue property. Mrs Mirko said she could not be sure about that. The following exchange occurred:²⁷

Q. Did you know during that period of time she had a house down in

Christchurch that she rented out? A. Yes, yes. Yes.

Q. Would you accept that the only other place for her to live at that time was with Lee?

_{A. Was?}

²⁷ At 120.

Q. With Lee at the Kingsway property?

A. I never really sort of – probably yeah, that would be right I suppose.

Q. Did you not discuss a lot about these things with –

A. No, I didn’t really. Lee was a very, very private man, and I never got

into dialogue with Gabrielle as far as their personal life went because Lee was a very, very black and white man and he, he just didn’t talk about those things... I never asked him, I just didn’t ask him. And he would come and we might see Gabrielle. And then I wouldn’t see her for ages. I’d ask how she is, “Oh, she’s all right.” But it was like more a friendship. I really didn’t –

Q. You couldn’t really tell one way or the other to be fair? A. No, no.

[49] Unlike her husband, Mrs Mirko remembered Mr Marsh and Ms Martin cooking a dinner at the Mirko’s residence in early January 2009. It was a spicy menu cooked by Mr Marsh as a result of his travels in Laos.

[50] Mrs Mirko did not know that Mr Marsh’s pet name for Ms Martin was “Poppy”. Like her husband, she was surprised by the email request for a replacement photograph for Mr Marsh’s cellphone.

[51] In answer to questions from the Judge as to why, on Mr Marsh’s death, Mrs Mirko had taken it upon herself to ring Ms Martin to give her the news, Mrs Mirko said it was because she had “seen them as a couple and I suppose I just felt for her being there on her own”.²⁸

[52] Ms Lala, a registered nurse, made an affidavit on 14 February 2012. She referred to Ms Martin’s claim that she and Mr Marsh lived together as a couple for a continuous period between the years 2000 and 2009. Ms Lala deposed, to her “certain knowledge”, that they had not lived together as a couple for at least four years prior to his death.

[53] Ms Lala was a close friend of Mr Marsh. They first met in 1991 when they

were work colleagues and both he and Ms Martin attended Ms Lala’s wedding in

_{2001. She deposed to having no doubt that had Mr Marsh and Ms Martin been in a}

²⁸ At 124.

continuous relationship from 2000 to 2009 then Mr Marsh would have told her about it.

[54] In cross-examination, Ms Ward clarified that it was around December 2006 that Ms Lala recalled Ms Martin and Mr Marsh no longer living together. But prior to that:²⁹

A. Um, previous to that I do remember that she bought a house in Takapuna and I have a recollection that she moved out around that time and, prior to her buying the house in Takapuna, I remember her being in and out of the house as well.

Q. Which house is that, the Kingsway property? A. The Kingsway property.

Q. So she was still visiting or staying at the Kingsway property from

2004 when she purchased the house to when she says the relationship ended in 2009?

A. I don’t remember her staying at the property, at the Kingsway

property between 2004 and 2009. Is that what you are asking?

Q. Yes, but I’m saying you just mentioned before that you knew she was going around there, you were aware of her being at the Kingsway property?

A. I was of her being, visiting at the Kingsway property but I was also aware of her being out of Auckland prior to 2004 as well. If the

house was bought in Takapuna – if her house in Takapuna was

bought in 2004, and I can’t recollect the exact dates, I also remember

her prior to buying the house in Takapuna, that she was in and out of

Auckland and had a property in Christchurch as well.

[55] Later in cross-examination, Ms Lala accepted that in later years she would meet up with Mr Marsh six to eight times a year.

[56] Ms Ward asked Ms Lala whether she was aware of the arrangement that Ms Martin would divide her time between the Takapuna and Kingsway Avenue properties. Ms Lala said she was not aware of that arrangement:³⁰

I just seemed aware of Gabrielle not being around after that, after – yeah.

_{[57] Later in cross-examination, the following exchange occurred:}³¹

²⁹ _{At 88-89.}

³⁰ _{At 94.}

³¹ At 97.

Q. From your observation of the flat, there was apparently a room – a flat that catered for their needs. It was obvious that two people were living there.

A. I don’t think it was obvious that two – it was obvious that it was

occupied, I suppose. I don’t know if you could say how many

people were living there.

Q. But you’re saying at that time you were aware they were both living

there?

A. I was aware that Gabrielle was there, but I – I’m not sure that the

amount of furnishings or furniture changed when he was living on his own though.

[58] Ms Lala did not know about the pet name “Poppy” and she was a little

surprised at the request for a replacement photograph for Mr Marsh’s cellphone.

[59] Ms Ward went back to Ms Lala’s view of the relationship between Ms Martin and Mr Marsh:³²

Q. But you believed the relationship between them was over by 2004?

A. I don’t think they were as husband and wife at 2000 when she moved to Takapuna, but I’m not saying that there was no friendship. I mean, I don’t think that they were together as husband and wife when she moved to Takapuna, I don’t think there was as a, that kind of relationship between them.

Q. And you base that on observation, your observations? A. I based it on my observations.

Q. Not by anyone telling you directly what was going on?

A. Um, except for when Lee told me later that he wanted nothing more to do with her and that.

[60] In re-examination, Mr Knight asked Ms Lala whether she considered

Mr Marsh and Ms Martin to be a husband and wife prior to 2004. Her answer was:³³

A. I thought they were in a partnership probably during those 90s when

I knew them.

Q. During the 90s? A. Yeah.

[61] The Judge asked Ms Lala about her evidence that prior to buying the house in

_{Takapuna, Ms Martin was in and out of the Kingsway property. Ms Lala’s}

³² _{At 100-101.}

³³ At 106.

recollection was that Ms Martin was trying to sell the house in Christchurch and was

“sort of up and down between Auckland and there”.³⁴ The Judge asked:

17. You said at one point that after 2004 you were aware that Gabrielle was not around, so prior to 2004 what was the situation?

A. I think she was around, and I think she was liv – when she was in

Auckland she was living there. I know what she had – well, I can remember that she had different jobs and was studying at different

times, but I can’t remember exactly when and what.

Q. So when you say she was around, she was around where? A. In Auckland.

Q. In Auckland?

A. Yeah, in Auckland and –

Q. With Lee, or –

A. With Lee. Yeah, with Lee.

[62] Mr Michael Barrett made an affidavit on 14 February 2012. He first met Mr Marsh in 1993 when they worked together. They became good friends and Mr Barrett was in regular contact with Mr Marsh down to the date of his death. Indeed, he last spoke to Mr Marsh the day before he died. He deposed:³⁵

I am also surprised that Gabrielle would say she and Lee lived together in a continuous relationship as a couple between 2000 and 2009. Over this period there were periods of cohabitation but these were brief, ‘on again off again’, and I would describe the relationship during this period as cordial but volatile, more like old flatmates. I know Gabrielle had money issues at times and Lee offered her a place to stay on occasions during this period to help her out. I saw Lee once/twice a month from 2000 until his death, so I had an opportunity as a close friend to understand his personal circumstances and visited his home often. The relationship that Lee had with Gabrielle was to my certain knowledge not that of a couple in a de-facto relationship or marriage.

[63] In cross-examination, Ms Ward asked Mr Barrett:³⁶

Q. Was there a significant period of cohabitation between Lee and

Gabrielle from 2000 to 2004?

A. There was certainly some cohabitation. I don’t know if you’d call it

_{significant. But certainly at times she was living there.}

³⁴ _{At 106-107.}

³⁵ _{Affidavit of Michael Brian Barrett in support of respondent, dated 14 February 2012, at [5].}

³⁶ Notes of evidence, at 222.

[64] Mr Abolins and Ms Perry made a joint affidavit on 16 February 2012. Ms Perry met Mr Marsh in the early 1990s when they became work colleagues. They deposed:³⁷

For many years prior to his death, we socialised with Lee on a reasonably frequent basis. He was a frequent overseas traveller, but, for the most part, travelled alone. He was a very independent person when it came to his travels, and arranged all his trips with great attention to detail. He was known to write interesting commentaries from abroad, which he sent to all of his close friends. In the commentaries that we received, Gabrielle was never mentioned. Certainly, as far as we can recall, she did not accompany him on his overseas trips.

[65] Mr Abolins and Ms Perry deposed that they were introduced to Ms Martin on one occasion only. They encountered her at Mr Marsh’s house after an evening out with Mr Marsh. They did not get the impression that Ms Martin was there as his partner. They deposed:³⁸

... We firmly believe that, knowing Lee as we did, if a relationship of the sort that Gabrielle asserts (between 2000 and 2009) existed, we would have known about it because of our frequent contact with Lee. But, also, Lee would have invariably told us about it.

[66] In cross-examination, Ms Ward concentrated on the obvious gaps in Ms Perry’s knowledge of Mr Marsh. For example, her assertion that he had not travelled overseas with Ms Martin when it was common ground that they had travelled together on a number of occasions. However, Ms Perry stuck to her view that Mr Marsh was single throughout the entire time that she knew him and that, although she was aware of the existence of Ms Martin, the only sense she had of Ms Martin’s relationship with Mr Marsh was that Ms Martin was his former wife.

[67] Mrs Carol Marsh, Mr Marsh’s mother, made an affidavit on 20 February

2012. During the period of her son’s relationship with Ms Martin, Mrs Marsh lived in Napier. She deposed that she kept in constant contact with Mr Marsh and would visit Auckland a couple of times a year. Mrs Marsh deposed that on those occasions

_{she always stayed with Mr Marsh at his Kingsway Avenue unit. She deposed:}³⁹

³⁷ Joint affidavit of Romans Abolins and Jacqueline Elizabeth Perry in support of respondent, dated

_{16 February 2012, at [4].}

³⁸ _{At [8].}

³⁹ Affidavit of Carol Maxine Marsh in support of respondent, dated 20 February 2012, at [6].

After 2004, when I believe Gabrielle and Lee’s relationship ended, the level of contact between Lee and I increased and I was able to visit more frequently. We would phone each other weekly and send several e-mails in- between. Generally, we would visit each other at least four times a year. I would go to Auckland twice a year and he would come to me in Napier twice a year.

[68] In discussing her son’s life with Ms Martin, Mrs Marsh deposed:⁴⁰

Gabrielle came and went from Lee’s life on a regular basis. I believe that he agreed to allow her to stay for various periods of time as he felt that she had nowhere else to stay. He was a highly moral man and would not have seen her out on the street. I was aware, from what Lee told me, that he did not welcome her visits but felt obliged to help.

[69] Mrs Marsh went on to remark that there were no photographs of Ms Martin and none of her personal effects around the Kingsway Avenue unit. Mrs Marsh said that:⁴¹

During the last live in period in 2004 Lee had confided in me that he was feeling very stressed as he was finding it hard to deal with Gabrielle.

[70] Mrs Marsh deposed that in 2004, “Lee asked Gabrielle to leave for the last time. Gabrielle left and never returned”.⁴²

[71] Mrs Marsh described the relationship between Mr Marsh and Ms Martin from

2004 as follows:

20. Gabrielle went to live in a house she bought in Takapuna. Lee told me that he had no idea that she had bought a house but he was pleased that she had a permanent place of her own and that she would be out of his life.

21. After Gabrielle acquired her home, my contact with Lee increased.

He talked to me openly and honestly about everything going on in his life. Seldom did he ever mention Gabrielle, unless asked, and

even then he did not like to talk about her. For these reasons, I

formed the very clear view that she was well and truly out of his life for good.

[72] Mrs Marsh was cross-examined extensively by Ms Ward. Mrs Marsh denied that on the times prior to 2004 when she stayed at the Kingsway unit that Ms Martin

⁴⁰ _{At [12].}

⁴¹ _{At [16].}

⁴² At [18].

was living there. Mrs Marsh explained that she would only go to stay with Mr Marsh when Ms Martin was not there. Importantly, Mrs Marsh accepted that from 2000 to 2004 Mr Marsh and Ms Martin were living together at the Kingsway Avenue unit. Mrs Marsh also accepted that if she visited Auckland when Ms Martin was going to be at the Kingsway Avenue unit, then Mrs Marsh would stay with her son, Brett.

[73] When Ms Ward put to Mrs Marsh that Ms Martin attended the small function for Mr Marsh’s 50th birthday in 2006, Mrs Marsh said that she had presumed that Ms Martin would be present because “obviously they were still friends at that stage”.⁴³

[74] Mr Gerald Craig Marsh (known by his middle name) made his affidavit on

20 February 2012. He is Mr Marsh’s younger brother. He deposed that from 1992 to 2004 he visited Mr Marsh at his home regularly, as well as meeting him socially elsewhere. He had no doubt that there was a relationship between his brother and Ms Martin during this period but in his opinion it was not a permanent or stable relationship, rather it was intermittent at best. He deposed that it was fairly typical for Ms Martin “to come and go as her needs shifted, but the duration of her visits

were always short”.⁴⁴

[75] Mr Craig Marsh deposed that he moved to Hawke’s Bay in July 2004 but returned to Auckland “virtually every week for the next four years”.⁴⁵ During these visits, probably monthly, he would go to Mr Marsh’s Kingsway Avenue property to socialise. He never once saw Ms Martin there.

[76] Mr Craig Marsh was cross-examined at length by Ms Ward. Mr Craig Marsh stuck to his view that, particularly in the period 2000 to 2004, Ms Martin “was coming and going in and out of the relation (sic) all the time”.⁴⁶ He made specific

_{reference to an incident which occurred in 2003:}⁴⁷

⁴³ _{Notes of evidence, at 190.}

⁴⁴ _{Affidavit of Gerald Craig Marsh in support of respondent, dated 20 February 2012, at [5].}

⁴⁵ _{At [15].}

⁴⁶ _{At 263.}

⁴⁷ At 264.

My wife and I were in, I, were around at Lee’s and, um, she wasn’t living there at that stage, she turned up on that particular occasion, she had her hair cut really short and we started talking about that, and, ah, it was, ah, it was unusual for Gabrielle to have her short hair and she’d, she’d, um, been to a hairdresser and said she’d like it cut like Halle Berry in the Bond movie, which had come out in, um, ah, late 2002. And at that stage there was a conversation ensued and she was living in a house bus at the back of somebody’s section, and so there was quite a discussion on this about the, this house bus, and it was around exactly the same time because we hadn’t seen her for months, we’d been visiting every fortnight, and she turned up out of the blue with a new haircut and a location where she was living.

[77] Mr Craig Marsh characterised the relationship between Mr Marsh and Ms Martin after Ms Martin bought her Takapuna house as one of “occasional companionship”.⁴⁸ This was on the basis of the observations he made while in Auckland on a virtually weekly basis. He said that he asked Mr Marsh, after his

50th birthday in 2006, why he bothered with Ms Martin. The reply, according to

Mr Craig Marsh, was “she’s good to go out with”.⁴⁹

[78] Mr Craig Marsh accepted that in Easter 2007, Mr Marsh and Ms Martin visited him and his wife in Kinloch. The two shared a room at that time.

[79] Mr Craig Marsh did not accept that from 2004 Ms Martin divided her time

between her house at Takapuna and Mr Marsh’s Kingsway Avenue property:⁵⁰

It was at least a month I’d ring Lee and grab a cab, I was only staying in the city, it was only 10 minutes away, and go out to his house. We’d have a few wines etcetera, um, there was never any evidence of Gabrielle being in at the house from the time I shifted to Hawke’s Bay in July 2004 till the time I resigned in 2008, August 2008, and I spent a lot of time in that house, and I specifically recall because Lee’s house is very spartan, I would use his toilet, um, there was only ever one toothbrush, there was only ever one toothpaste and a mouthwash, his, there was nothing on the walls, there was no female accoutrements whatsoever.

[80] Ms Ward then tried to have Mr Craig Marsh accept that from 2000 until 2004

Ms Martin lived with Mr Marsh. His response was:⁵¹

No I’ve, I think I’ve spoken two specific incidents where, um, where she wasn’t living there, I think she stayed with him, um, and then she left and went away on many occasions, so this, this concept of a continuous staying

⁴⁸ _{At 265.}

⁴⁹ _{At 266.}

⁵⁰ _{At 273.}

⁵¹ At 274.

with Lee from 2000 to 2004 just does not exist because I was around at his place probably more regularly than anybody else.

[81] He then clarified that in the period 2000 to 2004 he went to his brother’s

house once a fortnight and from 2004 to 2008 it was about once a month.

[82] In re-examination, Mr Knight asked Mr Craig Marsh about Ms Martin’s evidence that she had personal effects at Mr Marsh’s Kingsway Avenue property. Mr Craig Marsh said that he saw no evidence of cosmetics, female toiletries or any other indication that more than one person was living at the unit.

[83] Nigel Willcox and Faye Willcox made a joint affidavit on 4 September

2012. They knew Mr Marsh for about 20 years. They first met him after his divorce from Ms Martin. They first met Ms Martin in or about 2004 at a dinner party at the home of Mr and Mrs Brooking. Mr Marsh and Ms Martin had recently returned from a holiday in Asia. A few months later, Mrs Willcox encountered Mr Marsh and Ms Martin at a shopping mall. It was approximately six months after the dinner party that Mr and Mrs Willcox learned that Ms Martin was living on the North Shore in her own place.

[84] Mr and Mrs Willcox deposed to going often to Mr Marsh’s home to pick him up when they were socialising with mutual friends. Mrs Willcox recalled that on one of the first times that she went to Mr Marsh’s home he gave her a tour. Neither in that visit nor in subsequent visits did she see any signs of anyone other than Mr Marsh living at the address:⁵²

Up until the time of his death, we believed that Lee was a single man and had been for many years. On an occasion during the last years of his life, we recall Lee saying that he would hear from Gabrielle from time to time, but he mentioned this only casually and in passing. Through mutual friends, we only recently learnt that Gabrielle was making a claim against Lee’s estate. That has surprised us, given, as we understand, her claim is based upon the grounds that she and Lee were living together as a couple for a lengthy period of time post their first separation. Certainly, we saw no evidence of that in the period to which we have referred.

⁵² Joint affidavit of Nigel Willcox and Faye Willcox in support of respondent, dated 4 September

2012, at [8].

[85] As to the position of Ms Martin that she and Mr Marsh were living continuously together from 2000 to 2009:⁵³

... We find that allegation extraordinary, given our knowledge of Lee’s living circumstances and our frequent contact with him over the twenty or more years that we knew him.

[86] In cross-examination, Mr Willcox clarified that the frequency of their visits to Mr Marsh’s home to pick him up was every three months. He accepted that he did not really know what was going on in Mr Marsh’s personal life in terms of his relationship with Ms Martin. He accepted, further, that it was possible that if Mr Marsh had been in a relationship with Ms Martin he would not have known about it.

[87] Mrs Willcox was also cross-examined by Ms Ward. Mrs Willcox could recall meeting Ms Martin only on the two occasions to which she had deposed. Ms Ward, nevertheless, asked her:⁵⁴

Q. I understand that you learnt she bought a property in Takapuna?

A. Um, I recall that, um, she had moved out from, from Lee’s at some

stage and had moved into her own place on the North Shore.

Q. So was it your understanding between 2002 when you met her, to

2004 when she bought her house, that they were living together at the Kingsway unit?

A. For perhaps a short, a short time. But not for that entire time.

[88] Mr Patrick Goodin made his affidavit on 6 September 2012. He knew Mr Marsh from when they were teenagers. They kept in contact over the years as friends and Mr Marsh started working for Mr Goodin’s business in 2010, and remained with him until his sudden death in December of that year. He deposed:⁵⁵

5. Because Lee and I had both been divorced, we would often talk to each other about mistakes and regrets we had both made and had in life. I knew that Gabrielle kept in contact with Lee, but it was not my understanding that she and Lee were together as a couple. I did not observe her to share in his life the way that a partner does, and nor did Lee speak of any plans for their future. We never saw her at our social events where I would have expected to see her if she and Lee were together as a couple. Shortly before he died, Lee told me

⁵³ _{At [10].}

⁵⁴ _{Notes of evidence, at 182.}

⁵⁵ Affidavit of Patrick James Goodin in support of respondent, dated 6 September 2012.

that he had two regrets in his life. One was getting married to Gabrielle, and the other was letting her come back to stay with him on those occasions when she needed his support. He spoke of this more with regret than bitterness.

6. I had regular contact with Lee during the years that I knew him, and as I have indicated we socialised and spoke directly with each other about matters personal. I do not for one moment believe that Gabrielle and Lee lived together in a permanent relationship during the time that I understand that Gabrielle alleges they did post their separation and divorce, namely 1995 to 1999 and 2000 to 2009. That said, I believe they had contact, and that Gabrielle would stay at Lee’s home on occasions from time to time. But she was only a small part of Lee’s life following their separation and divorce.

[89] In cross-examination, Mr Goodin said that he was mildly surprised to hear that Ms Martin went to Mr Marsh’s 50th birthday celebration in 2006. Mr Goodin, himself, was away at the time. He was aware of the travelling that Ms Martin and Mr Marsh did together.

[90] Mr Goodin told Ms Ward that he had been to the Kingsway Avenue unit. He built the access ramp and put in exercise bars. That would have been shortly after Mr Marsh purchased the property. Mr Goodin’s evidence was that Ms Martin was not there at that time. Ms Ward asked Mr Goodin:⁵⁶

Q. You haven’t got any direct evidence that Gabrielle didn’t live at the

Kingsway property at any time?

A. Ah, yes I have. Only because of what Lee told me and one of the times I went there and – ‘cos Lee worked for me, he started work for

me in 2010 in my business early, and we, we talked a lot when – yes, I do know but whether I can actually categorically give you the

evidence, no. But, um, many conversations, many conversations.

[91] Mr Goodin described an occasion when Mr Marsh accompanied him and a group to Whangamata for the 2008 New Year’s celebration. Ms Martin did not accompany them and Mr Goodin’s understanding was that Mr Marsh had not been with Ms Martin for quite a while before then.

[92] In re-examination, Mr Goodin confirmed that on no occasion when he went to the Kingsway Avenue property was Ms Martin present.

⁵⁶ Notes of evidence, at 199.

[93] Mr Knight submits that on this evidence the Judge was right to find that there was no continuous relationship, and that the relationship there was can be characterised as companionship/friendship.

[94] Mr Knight relies particularly on the observations of the Kingsway Avenue property. It was small and sparsely furnished. If it had been Ms Martin’s home as well as Mr Marsh’s home then that would have been apparent to visiting friends and family. Instead, they saw no sign of occupation by Ms Martin.

The appellant’s evidence

[95] I turn now to the evidence called at the trial by the appellant.

[96] Ms Martin’s evidence was to the effect I have described earlier. It was detailed and confident. Ms Martin was unshaken in cross-examination on the key points of her case. Ms Martin accepted that she and Mr Marsh kept their finances separate but that from 2000 to 2004 she “contributed towards rates and electricity and stuff”.⁵⁷ From 2004 until 2009 her contributions extended only to “food and stuff”. Ms Martin told Mr Knight that in January 2009 she considered their shared assets to be “a combination of everything we had”.⁵⁸ That extended to her house in Takapuna.

[97] Mr Amon Martin, Ms Martin’s son, swore his affidavit on 30 March 2012. He was in secondary school in Christchurch when Ms Martin started talking about moving back to Auckland to live with Mr Marsh. Eventually, Ms Martin did make the move back to Auckland and Mr Martin boarded for the last year of his secondary schooling in Christchurch.

[98] In describing the later years, Mr Martin deposed that despite Ms Martin buying a house in Takapuna, he still considered her to be in a relationship with Mr Marsh and in his view the two were still very much a couple. If he wanted to contact her, he would telephone Mr Marsh’s house because he could usually get hold

_{of her there and, if not, Mr Marsh always knew her whereabouts. Mr Martin last saw}

⁵⁷ _{At 49.}

⁵⁸ At 59.

Mr Marsh in Te Awamutu towards the end of 2006. Mr Marsh and Ms Martin were having a weekend away there and Mr Martin visited with the lady who he later married.

[99] In cross-examination, Mr Knight asked Mr Martin to estimate the number of times he would have been in the presence of Mr Marsh and Ms Martin in the period

1999 through to the end of 2009. Mr Martin’s estimate was 15 times approximately. In the period 2004 to 2006, he estimated he visited his mother at her place in Takapuna every three or four months. He did not recall Mr Marsh ever being at the Takapuna property.

[100] In re-examination, Mr Martin told Ms Ward that there was one occasion where he hitchhiked from Hamilton to Auckland and went to the Kingsway Avenue property. Ms Martin was there at the time:⁵⁹

I think it had been kind of pre-arranged that she was going to be there, so it

was easier for me to go there than...

[101] The Judge asked Mr Martin where he stayed prior to 2004 when he came up to Auckland to visit the approximately 15 times he had estimated following questioning from Mr Knight. Mr Martin’s reply was that before there was the Takapuna property he stayed at the Kingsway Avenue address.

[102] Ms Jennifer Margaret swore her affidavit on 19 January 2012. She deposed to being a close friend of Ms Martin for approximately 20 years and met her when they were both living in Christchurch. She deposed to the circumstances in which Ms Martin left Christchurch to return to Auckland following her reconciliation with Mr Marsh.

[103] Ms Brenda Berge made her affidavit on 19 January 2012. Ms Berge is Ms Martin’s older sister. It seems that Ms Berge’s view of the relationship between Mr Marsh and Ms Martin comes largely from her association with Ms Martin over

_{the years. She deposed:}⁶⁰

⁵⁹ _{At 74.}

⁶⁰ Affidavit of Brenda Lee Berge sworn 19 January 2012, at [7].

... it was a constant in my mind that they were together as a committed

couple, especially in the years leading up to their separation in January 2009.

[104] Ms Berge, at all material times, lived in Napier.

[105] Ms Rachel Simpson swore an affidavit on 27 March 2012. She is Ms Martin’s younger sister. She attended the wedding of Mr Marsh and Ms Martin but never saw Mr Marsh after that. Ms Simpson lived at Wairoa and deposed:⁶¹

Most years at Wairoa Gabrielle usually put a present from Lee under the Christmas tree. She said she always had to promise Lee that she would not open it until Christmas day.

[106] Mr Sidney Parle made his affidavit on 21 March 2012. He is a next door neighbour to Ms Martin in Takapuna.

[107] Mr Parle deposed that he came to know Ms Martin as a friend. She discussed with him her move to Takapuna, saying the decision had not been made easily but that the move had allowed Mr Marsh and her to continue their relationship. Ms Martin told Mr Parle that the two of them got on much better because they no longer lived together fulltime. Mr Parle deposed further:⁶²

It was clear to us that while Gabrielle no longer lived full time with Lee that she spent most of her spare time at his place. Over the course of nearly five years I never once met Lee although Gabrielle often talked about him.

[108] Mr Parle also deposed:⁶³

I am absolutely sure that Gabrielle remained in an intimate relationship with Lee and spent much of her week at his place up until sometime in 2009. She did not tell me exactly when they stopped being a couple but I noticed she was spending more time at home and asked her what had happened with Lee. She told me that they had decided to end their relationship, once again without going into the details as to why.

[109] Mr Knight cross-examined Mr Parle only to establish that he never met

_{Mr Marsh and so never saw Mr Marsh and Ms Martin together.}

⁶¹ _{Affidavit of Rachel Emily Simpson sworn 27 March 2012, at [12].}

⁶² _{Narrative affidavit of Sidney Joseph Parle, plumber, sworn 21 March 2012, at [9].}

⁶³ At [14].

[110] Ms Kirsty Ross made an affidavit on 19 March 2012. Ms Ross first met Ms Martin in 2001 and the two became friends. She first met Mr Marsh at a social function in that same year. Ms Ross deposed:⁶⁴

Lee and Gabrielle appeared to have a normal life together – travelling, eating out, socialising with friends and family. In the beginning Gabrielle and I mostly socialised together but when I met my husband, Christopher Sullivan (“Chris”), we socialised with Gabrielle and Lee together for a while. We went to each other’s homes several times. We decided to try the Italian custom of socialising and cooking together. Gabrielle and I liked to experiment with food and thought this was a nice way to spend our time as couples. A few months later however, Gabrielle awkwardly informed me that Lee did not like socialising with her teaching friends very much.

[111] From this point, Ms Ross deposed that she socialised only with Ms Martin. This mostly involved drinks after work, although sometimes Ms Martin visited Ms Ross at her home.

[112] In 2004, Ms Ross helped Ms Martin move into her property at Takapuna. She deposed:⁶⁵

During the period from April 2004 into 2009 Gabrielle continued in an intimate relationship with Lee. They now spent some days apart each week but from my perspective they were still very much connected and therefore a couple albeit an unconventional one. Gabrielle didn’t tell me everything about their relationship, but she did often share how she wished she could have a more ‘normal’ relationship, one that involved socialising with family and friends. That was not the case with Lee and it was hard on her.

[113] In cross-examination, Mr Knight asked Ms Ross about her socialising with Mr Marsh and Ms Martin prior to 2004. Ms Ross confirmed that she had only brief social contact with the two of them together in the early part of her friendship with Ms Martin. That contact took place at Ms Ross’s home and at the property at Kingsway Avenue.

[114] Ms Ross accepted that her knowledge of the nature and extent of Ms Martin’s

_{relationship with Mr Marsh came from what Ms Martin had told her.}

⁶⁴ _{Affidavit of Kirsty Ross sworn 19 March 2012, at [5].}

⁶⁵ At [10].

The factual issues - discussion

[115] I do not agree that the particular factual errors identified by Ms Ward are important.⁶⁶ None of them, separately or taken with the others, could have led the Judge into overall error. They are too peripheral to the nature of the relationship between Mr Marsh and Ms Martin to do more than add colour to its definition.

[116] Ms Ward’s criticisms of the Judge’s treatment of the evidence go really to the weighting given to aspects of it by the Judge in her analysis, including omitting to refer to evidence Ms Ward submits is important in Ms Martin’s case.

[117] I agree, however, that the Judge did not address whether the nature of the relationship between Mr Marsh and Ms Martin might have changed during the period 2000-2009. In my view, the evidence that the two were cohabiting more or less continuously between 2000 and 2004 is stronger than the evidence that they were cohabiting on a halftime basis from 2004-2009.

[118] It is clear that Ms Martin, who had been living in Christchurch, returned to Auckland in around 1995 to live with Mr Marsh. Their relationship was rekindled and, with periods of separation as Ms Martin travelled between Auckland and Christchurch, and taught overseas, it continued. It was not an untroubled relationship. There was a separation from mid 1998 until June 1999 during which period Ms Martin returned to live in Christchurch. But there was another reconciliation. From 2000-2004 Ms Martin says she lived continuously with Mr Marsh at the Kingsway Avenue property. The evidence of Mr Marsh’s mother is to the effect that 2004 was the turning point in the relationship. Mrs Marsh accepted that from 2000 to 2004 her son and Ms Martin lived together at the Kingsway Avenue property and that it was in 2004 that Mr Marsh asked Ms Martin to leave for the last time. Mrs Marsh does not say that the two lived continuously at Kingsway Avenue from 2000-2004, making it clear that when she visited Auckland ( which she did twice a year) she would stay with Mr Marsh in periods when Ms Martin was not

_there.

⁶⁶ I refer to them at [15].

[119] The most direct evidence against Ms Martin’s assertion of continuous cohabitation was given by Mr Marsh’s brother, Mr Gerald (Craig) Marsh. His evidence⁶⁷ was that on an occasion in 2003, he and his wife were visiting Mr Marsh at his Kingsway unit. He said that Ms Martin was not living there at the time but turned up “out of the blue”. She had adopted a short hairstyle and explained that she was living in a house bus at the back of somebody’s section. Mr Craig Marsh said that although he had been visiting Mr Marsh every fortnight for months, this was the first time he had seen her there. The Judge does not refer to this evidence.

[120] I bear in mind that I sit in an appellate role. I did not see or hear the witnesses. I am in the position enunciated by Thomas J in Rae v International Insurance Brokers Ltd, in a case which concerned an appeal against a trial Judge’s finding of facts:⁶⁸

... It may not be fully appreciated that the deference of an appellate Court to the findings of fact of the Court at first instance is founded on a number of pragmatic considerations which make it inappropriate for the appellate Court to intervene. The advantages possessed by the trial Judge in determining questions of fact are manifest. Of paramount importance, of course, is the fact the trial Judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence. He or she can form an impression of the reliability of witnesses and, where necessary, their credibility – although in deference to the witness’s feelings the Judge may not always express an adverse conclusion in that regard. As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal. The Judge forms a perception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue. The Judge perceives first hand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.

An appellate Court has none of these advantages and must acknowledge that the Court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate Court to assert the capacity to be able to “second-guess” a trial Judge’s findings of facts when it does not share those advantages. Exceptional caution in departing from the trial Judge’s findings of fact are therefore regarded as imperative.

[121] Thomas J went on to make the point that there will be cases where it is clear to the appellate Court that the trial Judge has failed to use her advantage properly or

⁶⁷ _{At 264.}

⁶⁸ Rae v International Insurance Brokers Ltd [1998] 3 NZLR 190 (CA) at 199.

has simply misapprehended the facts. In such cases the appellate Court will not hesitate to intervene.

[122] In this case, with an exception to which I will come, I see no error in the Judge’s findings of fact with which I, with the disadvantages of my position, should interfere. The Judge had to synthesise all the evidence and give her findings based on her experience as trial Judge. Having read the evidence, I cannot say her conclusions on the facts are wrong. I can see both sides of the argument, and I take the points made by Ms Ward, but I cannot say, overall, that the Judge was wrong.

[123] The exception is the conclusion I have reached that the evidence, on the balance of probabilities, is that from 2000 until 2004 Ms Martin lived for significant (but unmeasured) periods with Mr Marsh at his Kingsway Avenue unit. It might be that the Judge recognised this but did not refer to it because she did not find it material to her overall conclusion. But since the Judge is silent on the point I will consider it specifically when I come to the third issue.

Did the Judge get the law wrong?

[124] Ms Ward submits the Judge erred in her approach to the law governing the determination of a de facto relationship because she said that “the most important requirement is that the parties live together as a couple”.⁶⁹ Ms Ward’s contention is that the Judge gave disproportionate weight to the factor of “the nature and extent of common residence” listed in s 2D(2) of the Act.

[125] I do not accept Ms Ward’s submission. First, living together as a couple is a prerequisite for the existence of a de facto relationship. The other two prerequisites are age and the absence of a formalised relationship. Therefore, the inquiry as to whether Mr Marsh and Ms Martin lived together as a couple is the central point in the case. The matters listed in s 2D(2) are simply matters to be taken into account where relevant in order to decide whether the parties were living together as a

_{couple. Further, the Judge was quite aware that parties do not have to live physically}

⁶⁹ GJM v BM, above n 1, at [10].

in the same household continuously throughout a relationship in order to be in a de facto relationship.⁷⁰

[126] Ms Ward submits that the Judge erred in law by not undertaking a careful inquiry to assess the multiple pieces of circumstantial evidence which, taken together, define the nature of the relationship between Ms Martin and Mr Marsh.

[127] I disagree. In my view, the Judge gave her reasons for determining that the relationship was not a de facto relationship. The Judge might not have gone through a detailed analysis of every aspect of Ms Martin’s case, but that does not amount to an error of law. The point is that Ms Ward disagrees with the Judge’s decision, points to passages of evidence not directly referred to by the Judge and raises alternative inferences. There is no general duty upon Judges in New Zealand to give reasons, although reasons are preferred and their lack may leave Judges vulnerable to

appeal.⁷¹

[128] Ms Ward submits that the Judge made an error of law by failing to weigh significant credibility issues and inconsistencies that arose during cross-examination. It is true that the Judge did not address the differences between the evidence of the parties. But that is not an error of law. It means that, on appeal, I do not have the assistance of the Judge’s analysis. I simply have to make the analysis myself.

[129] Ms Ward submits that by her approach the Judge failed to determine the case by reference to, and the application of, the requisite standard of proof; namely, the balance of probabilities.

[130] Again, what Ms Ward is really submitting is that the Judge erred in her appreciation of the evidence by giving disproportionate weight to the evidence called on behalf of the estate of Mr Marsh. Ms Ward disagrees with the Judge’s conclusion, and is frustrated that the Judge did not set out her analysis of the evidence in the sort of detail that Ms Ward would have liked to have seen. Again, as an appellate Judge,

_{I have to make my own analysis.}

⁷⁰ _{At [12].}

⁷¹ R v Awatere [1982] NZCA 91; [1982] 1 NZLR 644 (CA).

[131] I find that the Judge did not err in law.

Did the Judge make mistakes of law and/or fact which mean that her conclusion is wrong?

[132] On my analysis of the evidence, there is a need to distinguish between the period 2000-2004 and 2004-2009. The relationship described by Ms Martin for the former period carries the hallmarks of a de facto relationship. Looking at the matters set out in s 2D(2) as seen from Ms Martin’s perspective:

(a) The duration of the relationship. In this phase, four years.

(b) The nature and extent of common residence. Ms Martin said that during these four years she lived continuously with Mr Marsh at his Kingsway address.

(c) Whether or not a sexual relationship exists. Ms Martin gave evidence that it did.

(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties. Ms Martin’s evidence is that although they did not combine their finances, Ms Martin paid the rates of the Kingsway address, paid for groceries and made other financial contributions.

(e) The ownership, use, and acquisition of property. The Kingsway property was bought and paid for by Mr Marsh. Ms Martin says that they used it as their family home.

(f) The degree of mutual commitment to a shared life. Ms Martin’s evidence is that there was a deep mutual commitment to a shared life. Mr Marsh was a private person and he did not care for her friends. He did not socialise with her friends and had his own interests. However, there was a degree of mutual socialising with his friends.

(g) The care and support of children. Ms Martin acknowledges that

Mr Marsh was never close to, or responsible for, her son.

(h) The performance of household duties. The evidence of Ms Martin is that these were shared.

(i) The reputation and public aspects of the relationship. Ms Martin acknowledges that, although they were a couple, the fact that they often socialised separately meant they did not necessarily have the public profile of a couple. However, there were public aspects of the relationship. The travelling overseas together and her attending important family events with him are cases in point.

[133] In addition, Ms Martin pointed to the evidence of the relationship between her and Mr Marsh prior to this period. They had been married and divorced. They attempted to reconcile and she came back from Christchurch in 1989 for a period or periods. Although their marriage was dissolved in 1991, by 1994 Ms Martin was travelling regularly to Auckland to visit Mr Marsh. Despite further disruptions in the relationship, in 2000, according to Ms Martin, they began living together continuously. This was not the beginning of their relationship, it was a more intense form of their long existing relationship.

[134] The issue is whether it was open to the Judge to include the period 2000-2004 in her conclusion that Mr Marsh and Ms Martin were not in a de facto relationship in the period 2000-2009.

[135] The Judge had to consider Ms Martin’s evidence against that of the other witnesses. In my view, the Judge was right to give the evidence of the witnesses called by Ms Martin little weight. Most of them had had little or no contact with Mr Marsh. They had no firsthand knowledge of the relationship between the two. Their evidence can be taken to support the existence of an ongoing relationship through the perspective Ms Martin had of it. But that does not take Ms Martin’s case very much further.

[136] Mr Amon Martin did see his mother and Mr Marsh together, but not often during the relevant period. He could not say they were living together continuously. It is significant, however, that he said that, before his mother bought her Takapuna property, when he visited her in Auckland he would stay at the Kingsway Avenue property.

[137] The respondent’s witnesses, however, did know both Mr Marsh and Ms Martin. They are people – family and close friends – with whom Mr Marsh spent his life. On their evidence, Ms Martin was a part of Mr Marsh’s life in the sense of a companion – an intimate companion – but not an integral part of his life.

[138] If Ms Martin had lived continuously with Mr Marsh from 2000 to 2004, and shared his life to the extent she said, then that occurred without Mr Marsh’s family and close friends, his frequent social and shared-interest contacts, knowing about it. They knew Ms Martin stayed with Mr Marsh at Kingsway Avenue in the period

2000-2004 for periods of time, but none of them thought it was a continuous cohabitation.

[139] It was open for the Judge to accept the evidence of the respondent’s witnesses, and it is clear that she must have done. Once accepted, the Judge’s comments that “the indices in s 2D(2) are noticeably absent in the evidence” is justified.⁷²

[140] I conclude that the Judge was not wrong in failing to differentiate between the 2000-2004 period and the 2004-2009 period when characterising the nature of the relationship between Mr Marsh and Ms Martin.

[141] The period from 2004 until 2009 is more clear because of the purchase by Ms Martin of the Takapuna property. There is certainly evidence of an ongoing relationship – including overseas travel and attendance at significant family occasions. But the evidence for the respondent goes significantly against there being

_{the part-time cohabitation contended for by Ms Martin. It was open for the Judge to}

⁷² Quoted at [13].

find that from 2004 the two continued to maintain ties of companionship and shared life experience while living essentially independent lives.

Decision

[142] The relationship between Mr Marsh and Ms Martin was an unconventional one. For over 30 years their lives intersected for significant periods. The appellant’s chronology attached to Ms Ward’s submissions gives a clear picture of that intersecting. The issue for the Judge was whether, during the period 2000-2009, the intersecting had become a merger of the quality of a de facto relationship.

[143] Whether or not their relationship was a de facto relationship depends on whether they lived together as a couple. That does not mean they had to physically cohabit. But, looked at holistically, they must have shared their lives to such a degree that it is natural that the sharing of property results.

[144] The onus of proving that a de facto relationship existed between Mr Marsh and Ms Martin was on Ms Martin. The standard of proof was on the balance of probabilities; more likely than not.

[145] Once the Judge accepted the evidence of the respondent’s witnesses (as she was entitled to do), Ms Martin’s case was not proved. Instead, there was proved a relationship of shared life experiences punctuated by separations. There was intermittent companionship and enduring friendship. Sometimes Ms Martin shared Mr Marsh’s little unit at Kingsway Avenue. From 2000 to 2004, Ms Martin undoubtedly stayed at the unit for periods of time. There was a sexual component to the relationship even after 2004.

[146] But, what was missing (on the evidence accepted by the Judge) was a real merger of lives. Financially they were completely independent. Socially they were largely independent. Cohabitation was on again/off again.

[147] Mr Marsh had his Kingsway Avenue house which he owned, and Ms Martin had her house – first in Christchurch and then in Takapuna.

[148] The family lives of both parties were largely kept separate. Mr Marsh was never a parent figure in Mr Amon Martin’s life. It seems Mr Marsh had almost nothing to do with Ms Martin’s extended family. Ms Martin had few encounters with Mr Marsh’s family, although she was his guest at Mr Marsh’s mother’s second marriage ceremony in around 2003. Likewise, she was invited to help celebrate Mr Marsh’s 50th birthday in 2006.

[149] Mr Marsh made his Will in February 2006. Although it is not, of course, determinative, he did not leave any of his property to Ms Martin. Mr Marsh was a paraplegic. His life expectancy was limited, and he knew it. The age of 50 had been predicted to be about its extent. It can be inferred that he was very conscious of his relationships when he made the Will. He did not think that the nature of his relationship with Ms Martin was one involving the sharing of property.

[150] Mr Marsh, at about this time, nominated Ms Martin as his family support person. That is natural given their relationship as recognised by almost all the witnesses. After that relationship had entered its final separation phase and his own mortality was obvious, he wrote a codicil to his Will so that Ms Martin could have some mementoes of him. That, too, is consistent with the relationship as the Judge was entitled to view it.

[151] This was a particularly difficult case on its facts. The Judge made her decision and, bearing in mind her advantage as trial Judge, I cannot say she was wrong. The Judge’s decision was open to her on the evidence and the law. It is evident that the Judge must have found against Ms Martin on areas where credibility was in issue. The Judge did not say so, however. I take this to be an example of Thomas J’s remark that “in deference to the witness’s feelings the Judge may not

always express an adverse conclusion in that regard”.⁷³

[152] I conclude that the Judge did not err on her findings of fact, her understanding of the law or her application of the one to the other.

_{[153] The appeal is dismissed.}

⁷³ Quoted at [120].

[154] As to costs, there was a cross-appeal on the Judge’s costs decision. It was not pursued before me. But I do not understand it to have been withdrawn. Accordingly, the respondent is to file a memorandum on costs by 24 October 2014. The appellant

_{is to respond by 28 November 2014.}

Brewer J