Boskett v Boskett [2018] NZHC 1596 (29 June 2018)

Last Updated: 27 July 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002219 [2018] NZHC 1596

BETWEEN	DAVID CHARLES BOSKETT Appellant
AND	WILMA TANGDOL BOSKETT Respondent

Hearing:	20 June 2018
Appearances:	The Appellant in Person L Kearns for the Respondent
Judgment:	29 June 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 29 June 2018 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

.............................................................................. Registrar/Deputy Registrar

Counsel:

Lynda Kearns, Barrister, Auckland

Party:

D Boskett

DAVID CHARLES BOSKETT v WILMA TANGDOL BOSKETT [2018] NZHC 1596 [29 June 2018]

[1] This is an appeal under the Property (Relationships) Act 1976 (the Act). Mr Boskett appeals the decisions of Judge McHardy dated 26 July 2017 and 6 September 2017, in the Family Court at Auckland.

[2] Mr and Mrs Boskett were married and lived together for about 10 years, from 1999 up until March 2009. Mr Boskett is in his seventies and Mrs Boskett is a good deal younger. They have two children, now aged about 14 and 12 years.

[3] In the original relationship property proceedings in 2009/2010, Mr Boskett refused to take any steps to provide information. His position throughout that proceeding was that he had nothing left as at March 2009. An order for examination was made and he refused to comply with the subsequent orders. After a formal proof hearing, he was directed to pay $5,100. That amount is apparently still being paid, in small weekly instalments.

[4] In about 2016, Mrs Boskett was advised by Mr Boskett’s brother that in late 2014 Mr Boskett had bought a house in Blenheim, for $245,000. Mrs Boskett applied to set aside or vary the earlier judgment on the grounds of a miscarriage of justice. That led to the 2017 judgments.

[5] Mr Boskett filed various documents, but did not appear at the hearing on 26 July 2017.

[6] It seems to be common ground that the Blenheim property was funded by a cash contribution from Mr Boskett of approximately $100,000, being $50,000 from Pfizer pension funds which he transferred from the United States; $40,000 from the sale of Heartland Bank shares, and approximately $10,000 cash, of which he says about $7,000 came from his mother’s estate in Australia. The balance of the purchase price was met by a mortgage of $145,000.

[7] It seems from reading both judgments that Judge McHardy concluded in effect that about $70,000 of the cash contribution of approximately $100,000 was derived from relationship property which had not been disclosed by Mr Boskett.
[8] On his appeal, Mr Boskett seeks to adduce new evidence and rely on submissions to the effect that all of the $100,000 sum and other monies the Judge dealt with were in fact separate property.

[9] Ms Kearns, for the respondent, very properly and fairly accepts that the Pfizer pension component was entirely separate property. She points out that there was no obligation upon her to accept that, as Mr Boskett had to persuade me that I should be prepared to take into account new evidence in circumstances where in her view, the evidence should simply have been put forward earlier, instead of Mr Boskett taking the dismissive approach to the proceedings that he did. There is certainly something in her point.

[10] However, given Ms Kearns’ in my view correct acceptance of Mr Boskett’s new evidence and submissions, I need say no more than to record that the Pfizer pension was in fact separate property in its entirety.

[11] I accept, as the Family Court Judge did, that the Heartland Bank share proceeds were not paid to Mr Boskett until about April/June 2014, and also that the Heartland Bank shares were apparently not issued to him until January 2011, after the separation. However, Mr Boskett has not provided sufficient documentary evidence to meet the burden of proving that the Southern Cross shareholding, which apparently gave him the entitlement to the Heartland shares, was owned by him before the relationship. Moreover, he has not proven that the Southern Cross shareholding might not in any event have converted from separate property to relationship property. I am influenced in this regard by Mr Boskett’s earlier denial of ownership of any shareholding, even in the face of Mrs Boskett naming Southern Cross as one of the companies in which she believed he did hold shares. He says he denied ownership because the shares were valueless, but if that is true, there was no harm in disclosing them and obtaining and providing relevant documents. He wrongly denied ownership of other assets also. I also note Mr Boskett’s advice that he was made bankrupt in 2005 and for that reason put at least some assets into a company owned together with Mrs Boskett, Today’s Realty Ltd, the shares in which would be relationship property, unless proved otherwise. There is nothing to say that the same may not have happened with regard to the Southern Cross shareholding. But whatever the answer, the short
point is, I am not satisfied on the evidence available, that the Southern Cross shares, and therefore the Heartland shares, were separate property. The burden of proving any asset is separate property falls on the person who claims it to be separate property. Mr Boskett has not met this burden. As Ms Kearns said, given the level of non-disclosure, and lack of co-operation by Mr Boskett, the Court is entitled to draw an adverse inference.

[12] I therefore consider Judge McHardy was correct to treat the Heartland Bank share proceeds, which totalled $47,789 according to the earlier judgment, as relationship property (of which $40,000 was applied to the house purchase).

[13] In terms of the $7,000 sum that Mr Boskett says came from his mother’s estate, there is only his own evidence for that, plus the fact that the money came from a Richard Boskett. Again, I do not consider the evidence, particularly the documentary evidence, sufficient to discharge the burden of proof that rests on a party who claims an asset is separate property, especially given Mr Boskett’s history of obstruction and lack of cooperation. There is no, or insufficient, evidence as to the additional
$3,000-odd cash put into the deposit. I therefore find that the additional $10,000 cash paid on purchase of the house was relationship property.

[14] There is in addition, an amount of cash which went into an account in the name of Today’s Realty Ltd, which as I have said is a company where the shares were owned by both of the parties as at the date of separation. A sum of just under $20,000 was deposited into that account just before separation and as at the date of separation, there was a balance of $17,989, or just under $18,000. As I understand it, that amount was not taken into account in the 2009 proceeding. I consider I should take it into account now and it was the subject of submissions before me on appeal. Again, I am not persuaded by Mr Boskett that the Today’s Realty account is separate property. There is no documentary evidence to establish that it came from an asset owned by Mr Boskett prior to the relationship, but in any event on the face of it, the money is owned by a company, the shares of which are clearly relationship property. The sum of $18,000 should therefore be brought into account as relationship property.
[15] The total relationship property, not accounted for in the 2009 proceeding, is therefore $76,000, rounding the figures slightly. Mrs Boskett’s half share is $38,000.

[16] Having decided in the Family Court that the house was funded in part by relationship property, Judge McHardy also seems to have allowed Mrs Boskett a half share of the increase in value of the house. It is questionable whether s 9A of the Act applies to after-acquired property, but in any event, there is inconclusive evidence as to the value of the Blenheim property, certainly as at the current date. The Judge was referred to a July 2017 QV of $335,000. I note that Mr Boskett submitted on 6 December 2017 that the house would sell for no more than $325,000 and that he had put a lot of work into it. Ms Kearns very fairly advised me that real estate agents had recently indicated that a sale price now might be in the low $200,000’s, as a result at least in part of the present condition of the property and the difficulty of selling it with Mr Boskett in residence. I would certainly expect a fair market value to be materially above a 2014 purchase price, in the Blenheim area, but it would seem it is not as high as $335,000 or even close to that.

[17] In the circumstances, I consider the best approach is to allow a generous interest rate on Mrs Boskett’s total additional relationship property share of $38,000. I also then do not need to be concerned about adjustments for occupation, rental received, mortgage payments made, and so on. Some of the $38,000 sum was received by Mr Boskett back in March 2009 (Today’s Realty), and some of it in about April 2014. As to the $10,000 (including the funds from R Boskett), it is unclear how long that amount had been available to Mr Boskett. Rather than complicate the exercise, I allow interest at 12.5 per cent per annum for a period of four years, which amounts to
$19,000.

[18] The total sum due by way of further relationship property share is therefore
$57,000.

[19] There was no appeal over the costs ruling of $13,000 made by Judge McHardy, and I should add that, even had it been the subject of an appeal, I would not have disturbed that finding. It was clearly appropriate in all the circumstances. The Judge
was only making findings based on the information and submissions before him, and in the absence of Mr Boskett.

Conclusion

[20] The appeal is allowed in part.

[21] The sum which Judge McHardy found was due to Mrs Boskett is replaced by the sum of $57,000.

[22] All other orders remain in place, including ongoing interest and costs.

[23] I make no costs order on the appeal. Although Mr Boskett has had some success, that was in material part conceded by Ms Kearns, and of course, Mr Boskett is being allowed a considerable indulgence on this appeal.

[24] Mr Boskett must cooperate urgently in a sale of the house so that all amounts due to Mrs Boskett can be paid without yet more interest and costs being awarded against him. Otherwise he will be faced very shortly with a forced sale, which will be to his disadvantage, not Mrs Boskett’s. There is no reason why Mrs Boskett should be left out of funds any longer.

[25] I note, although it falls outside the legal considerations here, Mr Boskett’s repeated statements that his ex-wife does not deserve any money and that if the house has to be sold, he will be homeless. However, as he himself stressed, throughout their relationship they owned no home. They were renting a very basic property. If necessary, he can return to that position. I see no injustice at all in his ex-wife now having a share of the home that was purchased after the relationship, nor if it is required, in the home being sold. Added to that, Mrs Boskett has care of the children and it seems she receives very negligible support. In fact, it would be arguable that Mrs Boskett should receive a greater than 50 per cent share in the relationship property to take account of the children’s interest, in terms of s 26 of the Act. I do not have sufficient information to consider that. I also note that, based on the numbers in Judge McHardy’s decision, including the total Pfizer fund of $68,215, Mr Boskett
would appear to have had a surplus after the house purchase. There is also nothing to say that Mr Boskett does not have access still to other monies both overseas and in New Zealand. In any event, I do not consider the outcome at all unjust, as Mr Boskett characterises it.











----------------------------------------
Hinton J