Van der Hoeven v Van der Hoeven [2020] NZHC 2854 (3 November 2020)

Last Updated: 27 November 2020

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

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

CIV-2019-404-2511 [2020] NZHC 2854

UNDER:	the Property (Relationships) Act 1976
BETWEEN	ELIZABETH HUBERTINA VAN DER HOEVEN by her guardian ad litem Gregory William Feyen Appellant
AND	JACOB VAN DER HOEVEN Respondent

Hearing:	6 May 2020
Appearances:	J Connell and R Hallas for the Appellant R Holm for the Respondent by AVL
Judgment:	3 November 2020

JUDGMENT OF HINTON J

This judgment was delivered by me on 3 November 2020 at 4.30 pm pursuant to r 11.5 of the High Court Rules 2016

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

Solicitors/Counsel:

Connell & Connell, Auckland R A Holm, Barrister, Auckland

VAN DER HOEVEN v VAN DER HOEVEN [2020] NZHC 2854 [3 November 2020]

• [1] This is an appeal against a decision of Judge B R Pidwell in the Family Court at Auckland dated 30 October 2019 regarding division of the property of Jacob (Jack) and Elizabeth van der Hoeven.¹ The appeal is over whether a company shareholding is relationship or separate property under the Property (Relationships) Act 1976.²

• [2] Jack and Elizabeth were in a relationship for 29 years. They started living together in mid-1988, married on 20 May 1989 and separated in October 2017. It was a second marriage for both of them. They each have adult children from their first marriages.

• [3] Elizabeth filed this proceeding in May 2017 while still living in the family home. In September 2017, a psycho-geriatrician concluded that Elizabeth lacked capacity and her son, Mr Feyen, was appointed as her litigation guardian. Elizabeth has not herself participated in the proceeding since September 2017.

• [4] Prior to their relationship, Jack had significant business and other assets, including a 50 per cent shareholding in a company called Castle Products Limited, a house at Bridge Avenue, Te Atatu South and a yacht. It seems Elizabeth had only a car and some cash. Jack and his business partner had formed Castle Products back in 1971.

• [5] At the end of the relationship, there was no dispute that the parties’ mortgage- free family home at Mizpah Road, Waiake, household chattels and modest bank accounts were relationship property and to be divided equally. These totalled approximately $1,200,000 in value, such that each party’s share was about $600,000.

• [6] The issues in dispute revolve around the status of a one-third shareholding in Heritage Investments Limited (HIL), a company formed during the relationship subsequent to the sale of Castle Products. The value of 100 per cent of the shares in HIL is accepted to be approximately $3,270,000 as at March 2019 and the value of the one-third shareholding at that date therefore $1,090,000, based on then net asset value.

¹ van der Hoeven v van der Hoeven [2019] NZFC 6186.

² All statutory references are to the Act.

• [7] Judge Pidwell held that the HIL shareholding was Jack’s separate property and that Elizabeth had no claim in respect of it.

Background

• [8] As noted the parties started living together in mid-1988. At that point they lived in Jack’s house at Bridge Avenue. He had purchased it in December 1984 for

$87,000. Jack acknowledged under cross-examination that Elizabeth, who was an interior designer, assisted him in extensive renovation work on Bridge Avenue, which I refer to subsequently.

• [9] The business of Castle Products was based at Swanson Road. In November 1988, Jack and his business partner purchased in their joint names additional land at Swanson Road for carparking. There is no evidence as to how Jack’s share of that purchase was funded. In the absence of evidence, the Swanson Road land would be presumed to have been relationship property.

• [10] On 1 August 1990 Jack, and his business partner sold Castle Products Limited. Jack was then aged about 57. There is no dispute that Jack’s half-share in Castle Products was his separate property. The evidence is unclear as to the amount received on the sale and as to when Jack received his share. On the basis of an informal statement of proceeds produced by Jack it seems reasonable to conclude that he received a total for his half-share of the business of somewhere between $825,000 and

$920,000. This is inclusive of a car recorded as having a value of $18,000, leaving a cash component of between $800,000 and $900,000 approximately. It seems from the same statement of proceeds and an accountant’s letter dated 30 June 1993 that
$629,000, the bulk of Jack’s share, was not received by him until possibly as late as June 1993. Jack gives no evidence to clarify the dates of receipt. The accountant’s letter refers to the $629,000 sum as a final capital dividend. The Family Court judgment treats that payment as additional to Jack’s share of the sale proceeds,³ but the parties agree that is incorrect.

³ At [59].

• [11] Jack’s evidence is that he placed the funds from the sale of Castle Products on term deposit(s) when received. There are no longer available documents to evidence any term deposits, nor as to the dates and amounts of any deposit.

• [12] Up until March 1991, Jack received a salary from Castle Products. For the financial year ending 31 March 1991 his salary was $214,483.17 and he also received wages of $14,904.00. All salary and similar payments are agreed to have been relationship property and to have been deposited in Jack’s sole BNZ cheque account. I note that the agreement for sale of the company was entered into on 1 August 1990 but, given the quantum of the salary/wages he received for the year to March 1991, I consider it likely that settlement was later or Jack continued to be paid for a period post-sale, as is common.

• [13] In January 1991, while still living in Bridge Avenue, Jack bought a residential property at 6 Seaford Place, Murrays Bay for $300,000 in an unfinished state. On 14 August 1991 the Seaford Place property was settled on the parties under the Joint Family Homes Act 1964. Seaford Place was then renovated while Jack and Elizabeth continued to live at Bridge Avenue. The Bridge Avenue renovations were also continuing.

• [14] During 1991 and 1992, Jack and Elizabeth went on a number of overseas trips to Australasia and Europe (one of which lasted for some months) and purchased a BMW car, bringing it back to New Zealand from Germany.

• [15] The parties moved into the Seaford Place house before selling Bridge Avenue, which they did in March 1992 for $180,000. It is not in dispute that the Bridge Avenue sale proceeds went into Jack’s BNZ cheque account.

• [16] On 7 October 1992, as trustee of a company yet to be formed, Jack signed an agreement to purchase a motel at 85 Ash Street, Avondale, for $300,000. He had previously sought legal advice on estate planning. A letter from his lawyers dated 1 October 1992 referred to his wish to form an “estate planning company in which the voting shares will be divided equally between [him] and [his] two children”.
• [17] HIL was incorporated on 20 October 1992. All 12,000 shares were issued to Jack. The company opened a BNZ bank account on about 30 October 1992 and a cheque butt from the company’s records shows a deposit of $15,750 made by Jack on 18 November 1992. He says this deposit was to cover the share purchase price of

$12,000 plus $3,750 towards costs relating to the Ash Street motel.

• [18] The purchase of the Ash Street motel was completed in the name of HIL on 12 November 1992. Jack lent $300,000 to HIL to fund the purchase. Jack’s affidavit evidence is that he used some of the funds he had placed on term deposit to fund the purchase of Ash Street. He also accepted under cross-examination that any money coming off term deposit went into his BNZ bank account.

• [19] On 18 November 1992, Jack’s two children, Anja and Terrence at least nominally purchased from Jack 4,000 HIL shares for $4,000 each. They each paid that amount from their bank accounts into the company account. It seems Jack then paid $4,000 to each of them. As Judge Pidwell put it Jack essentially gifted the shares to his children.

• [20] Jack, Anja and Terrance were then the directors of HIL and equal shareholders of HIL’s 12,000 shares.

• [21] From October 1992, Jack received interest of $1,710 per month from HIL on his $300,000 loan, until the loan was repaid on the sale of the Ash Street motel in May 1997. The relevant HIL accounts are not available. Jack says he also took drawings from HIL, but no dividends. It seems that Jack did not receive any wages as such in the early days of HIL, although he was clearly involved in work for HIL, at least in terms of book-keeping.

• [22] Jack’s evidence is that he applied the monthly interest payments to pay $2,000 per month to Elizabeth to cover food and other costs including some of Elizabeth’s personal costs, all of which I would classify as household expenses.

• [23] On 9 July 1993, according to a solicitor’s invoice dated 2 July 1993, the Swanson Road carparking land was sold and Jack received $111,238.18. As noted

earlier, the sale proceeds would be presumed to be relationship property. Ms Connell says it is accepted that the sale proceeds had been disbursed by the date of separation and cannot be traced. These proceeds were received in any event well after the incorporation of HIL and so were not relevant to the funding of HIL, which is a key point at issue.

• [24] In 1995, Jack sold the yacht he had owned from before the relationship, for

$120,615. The Family Court Judge noted that no evidence was provided to determine whether the yacht had become relationship property by virtue of common use, or use as a family chattel, so its classification as separate property remained.

• [25] In about November 1996, Jack signed an agreement to purchase land at 1/19 Mizpah Road, Waiake (the ultimate family home) for $116,000. The deposit was

$10,000, and the balance was paid out of his bank account on the possession date, 31 January 1997. Jack then started to build a house on the Mizpah Road land.

• [26] On 31 December 1996, HIL contracted to sell the Ash Street motel for

$600,000. Final settlement took place on 1 May 1997. HIL bank records show that
$563,395.73 was received from the sale on 7 April 1997. Of this, $263,395 was paid to Jack which was said to be the outstanding balance of the $300,000 loan he had made to HIL, and $300,000 was placed on term deposit for HIL. Jack put $200,000 on term deposit in his name on 11 April 1997.

• [27] On 20 June 1997 Jack paid, by cheque drawn on his personal BNZ bank account, a deposit of $45,000 on a commercial building at 8 Monier Place, Penrose, which it seems was to be purchased in HIL’s name for $880,000. On 31 July, Jack drew a further cheque on his BNZ account for $113,243. On 1 August 1997, he broke a term deposit of $200,000 (which he says came from the Castle Products proceeds) and deposited that money in his personal bank account to cover the $113,243.67 cheque he had drawn the previous day. It seems the balance of the Monier Place purchase price came from HIL’s term deposit of $300,000 and borrowing of $440,000.

• [28] From the date of purchase of Monier Place in June 1997 through to the end of the relationship, Jack paid himself a salary/wages out of HIL, totalling about $540,000

between 1998 and the year ending 31 March 2018, or about $27,000 per annum on average. He says Monier Place involved more work on his part than Ash Street, apparently because the Ash Street tenancy/ies ran more smoothly. The sum of $2,000 per month continued to be paid to Elizabeth for household expenses out of Jack’s HIL salary payment.

• [29] In his affidavit and under subsequent re-examination, Jack said that company profits were the only funds available, which can fairly be taken as a refence to the interest, salary and drawings he received from HIL.

• [30] In May 1998, Jack borrowed money to fund the building of the house on Mizpah Road (which he mostly built himself), secured by way of mortgage over Seaford Place, where the parties continued to reside.

• [31] In January 2000, the parties sold Seaford Place, the mortgage over it was discharged, and they moved into Mizpah Road, Waiake which was mortgage-free. Mizpah Road was settled as a joint family home on 27 January 2000.

• [32] After suffering a car accident in 2009, Elizabeth received ACC payments. During the relationship Elizabeth received income from a job working in a laboratory, and they both received Government superannuation once eligible. They maintained separate bank accounts. Jack always had the same sole BNZ cheque account. There was no joint account.

• [33] Elizabeth was told not to drive again after the car accident. On 27 January 2010, she was admitted to hospital under the Mental Health (Compulsory Assessment and Treatment) Act 1992 and discharged on 11 February 2010. It was noted then that she had a gradual decline in memory and cognition and was suffering from tinnitus.

• [34] Jack says Elizabeth’s mental health declined from 2010 and he had to eventually do everything for her, saying she would only leave the house with him to attend the hairdresser or doctor, or occasionally go out for dinner. He says he stopped paying Elizabeth the $2,000 monthly allowance in about 2009 as she no longer went to the supermarket or required extra money.
• [35] Elizabeth’s evidence is that she tended to stay in her bedroom in the later years as she feared she would make Jack angry. She was concerned that he had little tolerance for her and was a dominant person who had decided to be rid of her. Jack denies this. Her children’s evidence is they became increasingly worried for their mother.

• [36] When Jack took a trip to Holland in 2012, Yvonne came to stay with her mother to care for her.

• [37] In August 2009, Jack’s son Terrance who had separated from his wife transferred his 4,000 HIL shares to Jack. In August 2013 Jack transferred them back to Terrance.

• [38] In 2016 Jack was hospitalised with emphysema. There were further HIL share transfers at this time. He and his children signed a deed of forgiveness of debt relating to his advance to them of the $4,000 paid in respect of their share capital. On 13 July 2016, Jack transferred 3,900 of the 4,000 shares in his name to his children in equal amounts, such that he had only 100 shares in his name and each of his children held 5,950 shares of the 12,000 shares in HIL.

• [39] There does not seem to be any question that Jack has at all times had full control and effective ownership of HIL (at least throughout the relationship) whatever the number of shares in his name and despite his children also being directors of the company. This was the thrust of the evidence given by his daughter Anja, but it is also clear from the evidence overall. He even remained “able” to charge as expenses in the books of HIL his full legal and accounting costs in this proceeding, including costs incurred after he became the holder of only 100 shares. For the year ending 31 March 2019, these legal and other costs totalled about $33,000.

• [40] Elizabeth’s daughter returned to New Zealand in 2017 to visit her mother. It was during that trip that this proceeding was initiated.

• [41] In October 2017 Elizabeth moved into a retirement village. Her costs since the separation including her fees at the village are being paid by Mr Feyen. Jack says he

has been told be cannot see Elizabeth. He has not seen her since she moved into the village, nor it seems has he paid her any money since she left, including on account of her property entitlement. Jack continues to live in the joint family home.

The Family Court Decision

• [42] In the Family Court, counsel for Elizabeth submitted that the Judge should classify Jack’s original shareholding in HIL (that is the full 12,000 shares) as relationship property and set aside under s 44 of the Act his dispositions of shares to the children both at the time HIL was incorporated and in 2016. Alternatively, counsel said s 9A applied, submitting Jack’s loan to HIL enabling the acquisition of the motel at Avondale and later the commercial property was sourced from relationship property.

• [43] Addressing the classification of Jack’s shares in HIL, Judge Pidwell said it was clear that Jack was the original shareholder of all of the shares and that he had obtained these after his marriage to Elizabeth. The Judge noted that if his shares were acquired out of separate property, they remained his separate property pursuant to s 9(2), unless one of the exceptions to s 9 applied.

• [44] The Judge then stated that Jack paid for the initial share capital of HIL from the proceeds of sale of Castle Products, did not use the family home to fund the purchase in any way, and Elizabeth was not involved in forming the company. She then found that the original 100 per cent HIL shareholding was separate property, having been acquired from separate property.

• [45] The Judge then considered Ms Connell’s argument that the s 8(1)(ee) exception applied, on the basis that Jack had obtained his shares in HIL for the common use or benefit of both spouses and the shares were therefore relationship property even if funded out of separate property.

• [46] Judge Pidwell recorded that the necessary inquiry was as to “Jack’s intention at the time he acquired the shares”. The Judge noted that Jack had operated Castle Products for 22 years before his marriage to Elizabeth. She said he had not continued to work following his sale of the business in his early 50’s, a few years after marrying Elizabeth. The Judge found, relying on Jack’s evidence, that he divided the Castle

Products sale proceeds into three categories. First, he put money onto term deposit; secondly, he bought an unmortgaged house to live in and a car; and, thirdly, he established HIL as a company to earn passive income and to provide an inheritance for his children.

• [47] Judge Pidwell was obviously impressed by Jack as a witness, describing him as “an honest, robust witness, who made careful financial decisions”, and who presented with “a good understanding of the financial and legal transactions that had occurred over the years.” It was clear, the Judge considered, that Jack had viewed the money he obtained from the sale of Castle Products as his alone, having grown the business to fruition before meeting Elizabeth. He chose to use some of it for them jointly, but, he was equally clear, he wanted to form HIL to purchase property to keep part of his separate property for the children of his first marriage. While he accepted that his income from HIL was his and Elizabeth’s “principal source of income” for their common life in later years, he said he always considered the shares in HIL – the capital in other words – to be his and his children’s. The Judge noted the legal advice as to estate planning that Jack had obtained in October 1992, the effect of which is recorded above, which she said corroborated Jack’s account of his motivation in founding HIL.

• [48] The Judge concluded that s 8(1)(ee) of the Act did not avail Elizabeth’s case. She said Jack did not intend for the HIL shares to be used jointly for the parties or to benefit them jointly. In fact, that was exactly contrary to his intention. The Judge held that the fact that income stemming from the shares over time was used by the parties did not affect the position, citing passages from the judgments of the Court of Appeal in Sloss v Sloss and of the Supreme Court in Rose v Rose.⁴

• [49] The Judge then turned to consider Ms Connell’s alternative submission in that Court that even if the HIL shares were Jack’s separate property then under s 9A the entire post-acquisition increase in the value of the shares was relationship property. This was on the basis that the $300,000 loan made by Jack to HIL to enable it to acquire

4. Sloss v Sloss (1989) 5 FRNZ 148 (CA) at 151-152, approved Rose v Rose [2009] NZSC 46, [2009] 3 NZLR 1 at [34].

the motel (and other commercial property) was said to be sourced from relationship property.

• [50] Still in connection with the s 9A argument as advanced in the Family Court, the Judge considered there was no evidence in support and that the evidence provided by Elizabeth’s “expert”, Mr Hammelburg, had encroached on the Court’s function and had involved unwarranted assumptions. She also said Mr Hammelburg had not clearly established his expertise. The Judge preferred the evidence of Mr Beylefeld, the forensic accountant engaged by Jack, whose evidence was that Jack invested $300,000 of the Castle Products sale proceeds into HIL in the form of the shares in HIL and a loan to HIL. The Judge noted that Mr Beylefeld accepted under cross-examination that there was no direct evidence of that, and he was relying on Jack’s evidence, but she said Jack’s evidence was unequivocal on this issue and that there was “no evidence that any funds, other than the Castle Products proceeds, were used for the purchase of HIL shares.” Accordingly, the Judge did not accept Ms Connell’s invitation to surmise that some relationship property must have been used by Jack in his loan to HIL to purchase Ash Street.

• [51] The Judge also accepted Mr Beylefeld’s evidence that, based on his analysis, there would have been sufficient liquidity remaining in Jack’s overall financial position after the purchase of Ash Street and receipt of the proceeds from the sale of Castle Products to meet Jack and Elizabeth’s living and other expenses without relying on Jack’s shareholding in HIL.

• [52] The Judge did not therefore consider there was any evidence capable of satisfying her on the balance of probabilities that any relationship property was applied to HIL, or that any increase in value of HIL’s shares was attributable to the application of relationship property. Accordingly, Elizabeth’s claim under s 9A failed.

• [53] The Judge then turned to consider Elizabeth’s application for relief, under s 44 of the Act, by reversing Jack’s 1992 and 2016 dispositions to his children of (in 1992) the equity in the shares and (in 2016) most of his remaining shareholding.
• [54] On the 1992 disposition, the Judge held, based on her earlier findings, that there was no basis on which she could be satisfied that any relationship property was applied to the establishment of HIL or HIL’s purchase of its assets.

• [55] The Judge made no finding in respect of the 2016 dispositions since, as Elizabeth’s claims to the shares being relationship property under ss 8(1)(e), 8(1)(ee) and 9A had failed, setting aside the dispositions would make no difference.

• [56] Having arrived at these conclusions, the Judge noted she did not need to consider Jack’s alternative argument under s 13.

• [57] The Judge therefore made orders recording the agreed position between the parties in respect of their other property as set out earlier and declaring that Jack’s remaining shares in HIL were his separate property.

Arguments on appeal

• [58] Elizabeth’s claim is now limited to the one-third shareholding that Jack held throughout the relationship until the transfer to his children in 2016.

• [59] Ms Connell submits first that while it may not be clear whether relationship property was used by Jack to acquire the HIL shares or make the loan to HIL, nor has it been clearly established that he did not use relationship property in those transactions. All monies came out of one intermingled bank account. The issue, she submits, is whether the Court can be satisfied, on the balance of probabilities, that the shares in HIL were solely purchased with separate property. If not, she submits the presumption that relationship property went into HIL must govern the position and the shares should be classified as relationship property, pursuant to s 8(1)(e).

• [60] In reply, counsel for Jack, Ms Holm, submits that it is clear on the evidence that the shares were acquired with separate property, that Jack provided HIL with a loan to purchase Ash Street and that the loan was sourced from a term deposit flowing from the sale of Castle Products. Given the Judge’s positive assessment of Jack’s credibility, his clear evidence and the coherence between his evidence, the expert

evidence, and such documentation as is available, there is no other reasonable conclusion on the facts, Ms Holm submits, than that arrived at by the Judge.

• [61] On the alternative argument under s 8(1)(ee), Ms Connell submits that the Judge misdirected herself as to the proper inquiry in focusing on Jack’s intention at the time he acquired the shares in HIL. She says the Judge misinterpreted the decision in Sloss and added the additional “hurdle” of a subjective intention test. Rather, Ms Connell submits, Jack’s intention in acquiring the assets falls to be determined objectively, in the sense that it is concerned with the purpose of the acquisition, as evidenced by its subsequent use, not the subjective intention of the spouse obtaining the asset. She submits that the plain purpose for which HIL was ‘acquired’ was to provide Elizabeth and Jack with the benefit of an income, that being what actually occurred.

• [62] Even if Jack was subjectively motivated, to an extent, by a desire to provide for his childrens’ inheritance in incorporating HIL, Ms Connell submits that was a longer-term purpose which ran together with his immediate purpose of providing Elizabeth and himself with an income for the rest of their lives. The two purposes are not exclusive of each other. To the extent it is necessary to determine which of the dual purposes was dominant, Ms Connell submits there was evidence from which the Judge could have properly concluded that Jack’s dominant purpose was to use the property to provide a source of income for Elizabeth and himself.

• [63] Ms Holm submits that the relevant assessment under s 8(1)(ee) is of the subjective state of mind of the party who acquired the property at the time of acquisition. It is quite clear from the evidence, Ms Holm submits, that Jack intended to leave a legacy to his children from his separate property through the establishment of HIL. She says HIL provided some passive income to the parties, and only after the Monier Place commercial property was acquired. The concept that HIL might one day acquire assets yielding income of this sort was not contemplated by Jack at the time it was used to acquire the motel on Ash Street. Counsel submits that such an incidental benefit is not enough to satisfy s 8(1)(ee), particularly in the face of what she says is overwhelming evidence as to Jack’s contrary actual intention in incorporating the

company. That was, Ms Holm submits, to incorporate an investment company vehicle through which to provide an inheritance to his children.

• [64] Ms Connell then argues that the 2016 dispositions should be set aside under s 44. She submits it is clear that Jack’s intention in disposing of almost all his one- third shareholding in HIL to his children in 2016 was to defeat any claim by Elizabeth to those shares. Ms Holm submits that, should the shares be found to have been relationship property, the issue of the application of s 44 should be remitted to the Family Court.

Approach on Appeal

• [65] Elizabeth’s appeal is brought under s 39 of the Act. It is a general appeal and is to proceed by way of rehearing.⁵ I must form my own view of the merits, including as to matters of evaluation and degree, though the appellant bears the onus of satisfying me the decision under appeal is wrong and that I should depart from it.⁶

• [66] In considering whether I should depart from the decision below, the amount of deference I should afford to the judgment under appeal is for me to consider. However, given the particular advantages enjoyed by the Family Court because of its technical expertise, and also the Judge’s having had “the opportunity to assess the credibility of witnesses”, I may “rightly hesitate to conclude that findings of fact or fact and degree are wrong”.⁷

Analysis

Sections 8(1)(e), 9(2), and 9A: Did Jack acquire the one-third shareholding in HIL out of relationship property?

• [67] As noted, I am concerned only with Jack’s one-third shareholding in HIL. It was acquired in November 1992 for $4,000 (as part of a total payment of $15,750).

5. Property (Relationships) Act 1976, s 39(3); District Court Act 2016, ss 126-130; High Court Rules 2016, rr 20.1 and 20.18; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4] fn 6. See also Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

⁶ Austin, Nichols & Co Inc at [3]-[5] and [16].

7. At [5], following Shotover Gorge Jet Boats Ltd v Jamieson and Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 (PC).

Claims that had been made in the Family Court regarding Jack’s contemporaneous loan to HIL of $300,000, and to the balance of the HIL shareholding, were not pursued on appeal.

• [68] The HIL shares were acquired during the relationship and will therefore be categorised as relationship property under s 8(1)(e), unless they fall into one of the exceptions. Jack argues that they fall into the exception under s 9(2) and are therefore separate property.

• [69] Generally, notions of onus of proof fit uncomfortably within the legislative regime of the Act, as:⁸

[the] Act, and the regulations which have been promulgated pursuant to it, make it clear that, although there is not a fully inquisitorial system, a Court needs only to be satisfied about a state of events which has existed, or which exists.

• [70] A contrary conclusion has been reached, and something closer to an onus in the traditional sense found to apply, where required as a matter of statutory interpretation.⁹

• [71] For example, a proponent of separate property faces such an onus of proof, particularly where the property was acquired during the relationship. Were it otherwise, it would be too easy to remove such property from the ambit of the Act.

• [72] As Tipping J held in Allan v Allan:¹⁰

To avail himself of s 9(2) Mr Allan must show on the balance of probabilities that his interest in [the property in dispute, which was acquired after the relationship began,] was acquired out of separate property. This means in my judgment acquired wholly out of separate property.

• [73] Subsequently the Court of Appeal in Watson v Watson thought it a “proper” concession on the part of a husband, claiming company shares that were prima facie

⁸ M v B [2006] NZCA 535; [2006] 3 NZLR 660 at 669 (CA) at [39].

9. Such as in respect of s 9A(1): Nation v Nation [2004] NZCA 288; [2005] 3 NZLR 46 (CA) at [70]- [80] and Rose v Rose [2009] NZSC 46, [2009] 3 NZLR 1 at [49]; and where a party proposes the Court should depart from the presumptive position in respect of s 2G(1) and adopt a different valuation date: GFM v JAM [2013] NZCA 660, [2014] NZFLR 418 at [35(d)].

¹⁰ Allan v Allan (1990) 7 FRNZ 102 (HC) at 109.

matrimonial property were separate property, that he bore the onus of proof. Such a position was, as the Court put it:¹¹

[...] in keeping with the scheme of ss 8 and 9 of the Act. It is appropriate the spouse asserting that property is separate should prove it as that spouse will be in a better position to prove the positive than the other spouse will be to prove the negative.

• [74] Returning to the present facts, the argument that the HIL shares should be classified as separate property is therefore a matter of which Jack must satisfy the Court, rather than it being for Elizabeth to prove the contrary.

• [75] The Judge found simply that Jack paid for the HIL shares out of the proceeds of sale of Castle Products and they were therefore separate property.

• [76] Jack’s evidence was that “HIL came from the proceeds of Castle Products”. This evidence is neither clear nor of sufficient detail in itself. I note that even where Jack talks earlier about taking funds off term deposit, that was in relation to the sum of $300,000 for the purchase of Ash Street. The evidence of Mr Beylefeld, Jack’s expert, contrary to the impression from the judgment, does not take the matter any further as he (quite properly) made it clear that he was relying entirely on Jack’s evidence.

• [77] Judge Pidwell noted that Jack was not cross-examined on this point, but I do not consider it was necessary for counsel to Elizabeth to do so, bearing in mind that Jack has the burden, the generality of his own evidence, and the evidence of intermingling of funds in his bank account at the time of the HIL share payment.

• [78] As noted earlier, the payment for the shareholding at issue was only $4,000 (being part of a payment of $15,750). Any payments Jack made, whether for everyday activities, for large transactions, or for the HIL shares, came out of his BNZ bank account.

• [79] Jack’s salary payments all went into that account. The relevant bank statements are no longer available but there would likely have been material funds accumulated

¹¹ Watson v Watson [1996] NZFLR 673 (CA) at 675.

in that account from his director’s salary and wages and otherwise. I appreciate that the salary was only paid up until 31 March 1991, and there was a high level of expenditure incurred by the parties between March 1991 and the date of acquisition of the shares in October 1992. However, Jack’s salary was particularly high and their customary expenditure seems to have been relatively low. I would not be prepared to conclude these funds had been exhausted by the time HIL was incorporated.

• [80] In addition, Jack accepts that the proceeds of sale of Bridge Avenue went into his BNZ account in about March 1992 and I consider those proceeds were in part relationship property. Ms Holm in fact conceded in her written submissions that Bridge Avenue was relationship property having been the family home. As Ms Connell quite properly accepted, it was not the family home at the date of its sale as the parties had already moved into Seaford Avenue and the proceeds are therefore not subject to the presumed categorisation of s 8(1)(a).

• [81] Nonetheless, I consider that Ms Connell is correct that s 9A of the Act applies to Bridge Avenue and the sale proceeds. Relationship property had been applied to Bridge Avenue, which had led to an increase in value such that the proceeds of sale were an intermingled fund of separate and relationship property. While it is not possible to quantify the value of the relationship property component, this is not a case where a claim is being made in respect of a particular quantum, but rather one in which it is claimed that the sale proceeds represented an intermingled fund. For that purpose in my view it is sufficient if the increase in value from the work carried out was material, and I consider it clearly was.

• [82] The parties had carried out work on Bridge Avenue from July 1988 down to the date of sale in March 1992. Jack gave evidence that he had spent “a lot of money” on Bridge Avenue. The work carried out included the addition of an extra floor. On that basis I can fairly find a consequential increase in value without formal proof of it. I note also that Jack had only owned the property since December 1984, just over seven years before he sold it, and it had increased in value from $87,000 to $180,000. Both parties had been involved in the work, Elizabeth applying her ability as a designer in the process. The money applied to the development of Bridge Avenue had to have come from relationship property as on the evidence that was the only money then

available, namely from Jack’s salary and wages from Castle Products Limited. Jack’s evidence was that he had put the Castle Products proceeds (such as had been received) on term deposit, so that would not have been available. Even if he had taken some of the proceeds off deposit, that money would have gone into his BNZ account and been intermingled with his salary and wages, since all money received and payments made went through that account.

• [83] Returning to the funding of the HIL shares, even assuming Jack did take more than $300,000 off deposit from the Castle Products proceeds, this money would have then gone into the BNZ account and been intermingled with salary, any other money he received, and the Bridge Avenue proceeds.

• [84] For these reasons, I do not consider it proven on the balance of probablities that when Jack drew a cheque on his BNZ account for $15,750 it came wholly from separate property. As Tipping J held in Allan v Allan, where separate property monies are paid into a single all purpose bank account the character of those monies should be regarded as prima facie lost.¹² As in Allan, I consider that if $15,750 of the Castle Products proceeds was taken off term deposit, of which I am not satisfied in itself, the money would have been intermingled in such a way it would not be reasonable to regard it as separate property.

• [85] I note further that, given Jack had to fund both the shares and the $300,000 loan in November 1992, the total being $315,750, it is far from clear that sufficient of the Castle Products sale proceeds would have been available to him at that time. As noted, it seems that a total of $625,000 of the sale proceeds was not received by him until some time up to June 1993 and as I have recorded above, the actual total received by Jack may have only been $800,000 in cash. Even if the total cash received on the sale of Castle Products was $900,000, it may well be that at the time he made the loan and paid for the HIL shares, Jack did not have to hand from the sale as much as

$315,750.

• [86] I am therefore not satisfied that the one-third HIL shareholding was acquired solely out of separate property. In those circumstances the default position applies and

¹² Allan v Allan (1990) 7 FRNZ 102 (HC) at 108.

the shares, having been acquired during the relationship, are relationship property under s 8(1)(e) of the Act.

Section 8(1)(ee): Did Jack acquire the one-third shareholding in HIL for the common use or benefit of the parties?

• [87] In case I am wrong in my conclusion as to the application of ss 8(1)(e), 9(2), and 9A, I turn to consider Ms Connell’s alternative submission that Jack’s shares in HIL were relationship property under s 8(1)(ee).

• [88] Section 8(1)(ee) classifies as relationship property:¹³

[...] all property acquired, after the marriage [...] began, for the common use or^[14] common benefit of both spouses or partners, if —

(i) the property was acquired out of property owned by either spouse or partner or by both of them before the marriage, civil union, or de facto relationship began; or

(ii) the property was acquired out of the proceeds of any disposition of any property owned by either spouse or partner or by both of them before the marriage, civil union, or de facto relationship began

• [89] Section 9(2), already discussed above, is subject to s 8(1)(ee).

• [90] Section 8(1)(ee) has been considered on a number of occasions, though more often the Court was considering whether there had been an acquisition,¹⁵ or the timing of the acquisition,¹⁶ than the purpose of the acquisition. Here of course, the purpose is the issue, and the material word is “for”, as appears in the phrase “for [...] common use or common benefit.”

¹³ This is subject to s 9A, addressed above, and ss 9(3)-(6) and 10, which are not of present application.

¹⁴ Before 1 February 2002, the provision referred to property acquired “for the common use and benefit” of the parties to the relationship. Previously, claims had faltered because of the difficulty in demonstrating common use, as opposed to common benefit, with the requirements having been read conjunctively despite appellate authority saying that two separate inquiries were not required: see Campbell v Campbell (1978) 2 MPC 33 (SC); Brophy v Brophy (1992) 9 FRNZ 468 (HC); and Sloss v Sloss [1989] 3 NZLR 31 (CA) at 35. The provision was amended to read “common use or common benefit” by s 14(2) of the Property (Relationships) Amendment Act 2001. It was not submitted this makes any difference to determining whether the property was acquired for the requisite purpose, however understood, and nor I do not consider that is the case.

¹⁵ See YLL v RC HC New Plymouth CIV-2008-443-139, 25 September 2008; Burmester v Burmester

[2018] NZHC 47, [2018] NZFLR 206.

¹⁶ See Martin v Martin [2015] NZHC 1823, leave to appeal refused [2016] NZCA 225.

• [91] This phrase was considered by the Court of Appeal in Sloss v Sloss, to which Judge Pidwell referred and on which both parties rely.¹⁷

• [92] During the course of Mr and Mrs Sloss’ marriage, the husband had applied separate property to purchase a commercial building. He had represented to the wife that the building would be matrimonial property (contrary to a premarital agreement), and had borrowed money from her uncle on that understanding. The High Court held the building was matrimonial property under s 8(ee) of the Matrimonial Property Act 1976 (the equivalent provision to s 8(1)(ee), then in force).

• [93] Dismissing Mr Sloss’ appeal against that finding, the Court of Appeal confirmed the use of the word “for” in the expression “for the common use [or common] benefit” means the focus of the inquiry must be on the purpose for which the property is acquired, not whether it was in fact actually applied to their common use or benefit.¹⁸ In that case it was clear the commercial property, in particular the income derived from the tenants of the property, had not in fact been applied to the parties’ joint benefit. Somers J, while clearly considering it was unsatisfactory to have to find that the property had become matrimonial property, held that “the proper course is simply to follow the words of the Act; that the intended commitment of the separate property at the time of purchase is sufficient” for establishing the relevant “intention” for s 8(1)(ee).¹⁹

• [94] Clearly Somers J was primarily concerned with a situation in which property ostensibly intended for use for the common benefit of the couple was not in fact, in any practical sense, put to that use, a rather different factual situation to this case. Nonetheless, the statements of principle remain applicable.

• [95] Turning to the problem created in that case by the focus on the acquiring party’s intent at the time of acquisition, Somers J said that:²⁰

In most cases what was subsequently done - how the property was enjoyed or used - is the only evidence from which the intention or purpose at the time of

¹⁷ Sloss v Sloss [1989] 3 NZLR 31 (CA) at 42.

¹⁸ At 35, 41, and 43.

¹⁹ At 42.

²⁰ At 42.

acquisition can be ascertained. In this case however the intention is to be determined from contemporaneous declaration. On any reasonable view the declaration embraced both intended common use and benefit.

• [96] As is clear, Somers J was not purporting to state that the necessary intention was, as Ms Connell terms it, an ‘objective’ one to be inferred from the subsequent application of the property. Rather, he was referring to the acquirer’s actual ‘subjective’ intention in acquiring the property.

• [97] However, as the Judge recognised, in many cases the acquirer’s actual state of mind at the time of acquisition must be inferred from their objectively ascertainable actions and words. That, largely, is an evidential question; one that will often, as the Judge said, need to be determined by means of inference from the subsequent use of the property. Equally, sometimes the most persuasive evidence is the acquirer’s own contemporaneous declaration of their intention. In either case, the relevant inquiry is as to the acquirer’s actual object(s). The consequences of the acquirer’s actions are relevant only insofar as they provide objective indicia, of which evidence might usefully be adduced, to establish the acquirer’s subjective intention at the time of acquisition.

• [98] Pertinently here, Sloss v Sloss is also relevant to the question of how to approach cases in which it can fairly be said the acquirer had in mind multiple objects in acquiring the property. Addressing this issue in his separate judgment, Richardson J commented that “where various purposes can be identified, it may be proper to distinguish in temporal terms between immediate and intermediate and longer-term purposes and in the case of concurrent purposes it may be necessary to adopt a dominant purpose test”.²¹ However, while noting such a test was attractively “familiar”, being seen in other branches of the law, Richardson J expressly did not adopt such a test, favouring instead the “broader general test” of intention favoured by Somers J.²²

• [99] This issue of multiple purposes arose in SB v DC.²³ There, the husband had acquired a residential property prior to the marriage, which the parties started to live

²¹ Sloss v Sloss [1989] 3 NZLR 31 (CA) at 36.

²² At 36.

²³ SB v DC HC Auckland CIV-2011-404-1005, 4 October 2011.

in only after marrying and used as their matrimonial home for four years. The husband had obtained rental income from the property between purchasing it and beginning to reside there.

• [100] Toogood J considered that provision of a property that could eventually be used as a matrimonial home had been, as a matter of fact, one of the principal purposes for which the husband had acquired the house.²⁴ That having been one of the husband’s principal purposes, Toogood J considered, on the basis of Barker J’s much earlier 1978 decision in Haggie v Haggie,²⁵ was enough to mean the property had been acquired “for” the couple’s common use or benefit. Toogood J did not dwell on his reasons for this view, but regarded it as consistent with the wording of the Act. In other words, the Judge did not apply a test of dominant intent, but rather undertook the factual inquiry called for by Somers J’s “broader general test”.

• [101] Blanchard J, writing for the Supreme Court in Rose v Rose, approved Somers J’s comments in Sloss, saying:²⁶

This provision is concerned with the original purpose of the acquisition, not with how the acquired property was actually used or how it actually benefited the parties. In the present case, the important question under s 8(1)(ee) is the husband’s purpose when the vineyard assets [...] were being acquired by the partnership, that is, his purpose during the development of the vineyard.

(Footnote omitted.)

• [102] Mr Rose had been the sole owner of a farm when he and Mrs Rose had married. He was a partner with his father and brother in carrying on the business of farming that land, and other land owned separately by the father and brother (some of which Mr Rose inherited on the death of his father). Mr Rose and his brother eventually

²⁴ At [22].

²⁵ At [21], referring to Haggie v Haggie (1978) 1 MPC 98 (SC). Haggie concerned s 8(d) of the Matrimonial Property Act 1976, the equivalent provision to the present s 8(1)(d). Somers J in Sloss v Sloss [1989] 3 NZLR 31 (CA) considered the material phrase in s 8(1)(d) – “property [...] intended for the common use [or] common benefit” – to be equivalent to the material phrase in s 8(1)(ee), such that cases concerning the application of s 8(1)(d) are of relevance in applying s 8(1)(ee). The appropriateness of this approach was confirmed by Blanchard J in Rose v Rose [2009] NZSC 46, [2009] 3 NZLR 1 at [34] fn 29. For completeness, I also note that, at the time Barker J decided Haggie, s 8(1)(d) referred to property acquired “for the common use and benefit”. Toogood J did not think the substitution of the phrase “for the common use or common benefit” that made a difference: at [21] fn 3.

²⁶ Rose v Rose [2009] NZSC 46, [2009] 3 NZLR 1 at [34], citing Sloss v Sloss [1989] 3 NZLR 31 CA) at 35 and 41.

developed a successful wine-grape growing business on the various parcels. Mrs Rose claimed an interest in the partnership property acquired after the marriage under, inter alia, ss 8(1)(ee) and 9A(1).

• [103] Blanchard J inferred that the husband’s “purpose” at the time of acquiring the vineyard assets had been to provide for the family, given that “the partnership business was effectively the husband’s job”, being “the means by which he earned his living so as to be able to provide support for his family” and from the proceeds of which “the household expenses of both the husband and his brother” were paid. It was “not merely an investment from which he derived some income”. Blanchard J also referred separately to apparent acknowledgements by the husband during the period of the development of those assets that his efforts were intended for the common benefit of the parties.²⁷ Blanchard J took all of that into account in reaching his view of purpose.

• [104] The Supreme Court in Rose did not significantly develop the position as relates to s 8(1)(ee) beyond what was said in Sloss. Reference to the handful of other decisions concerned with the question of whether property was acquired for the requisite purpose, all of which apply Sloss or Rose, does not assist in further elucidating the law.²⁸ The potential exception is the decision of Panckhurst J in McKay v Smith,²⁹ to the extent that case usefully illustrates that while neither party bears the onus in a claim under s 8(1)(ee), it is incumbent on a party alleging the acquirer had a particular intention to substantiate that claim. This will be particularly so where the claimed intention is inconsistent with the inference to be drawn prima facie from the actual use to which the property was subsequently put.

• [105] In summary, the following points emerge from the Sloss and Rose line of cases so far as the application of s 8(1)(ee) is concerned:

²⁷ At [35].

²⁸ See Mikulicic v Jane [2020] NZHC 656; JEF v TLR [2012] NZCA 612; JEF v TLR HC Tauranga CIV-2009-470-521, 19 May 2010; Patel v Maqbool HC Auckland CIV-2009-404-7323, 27 May 2010.

²⁹ McKay v Smith HC Invercargill CIV-2005-425-143, 22 June 2005 at [31]-[33].

(a) the focus is on the actual or “subjective” intention of the acquiring party at the time of acquisition, as opposed to the “objective” purpose a notional observer might have inferred the acquirer to have had.

(b) the relevant purpose for acquisition is to be assessed using a “broader general test” encompassing evaluation of all of the circumstances of the acquisition.

(c) it is sufficient for the acquirer to have intended the property to be used by both parties or for their common benefit as one of the principal purposes of acquiring the property.

(d) speaking practically and as a matter of proof, the acquirer’s subjective intention will need to be evidenced by reference to objective indicia of that intention. In this regard:

(i) all things being equal, statements of intention by the acquiring party contemporaneous with the date of acquisition (and, most desirably, evidenced in documentary form) or other actions of the acquiring party contemporaneous with the acquisition will carry the most weight in that assessment; and

(ii) absent such evidence, the use to which the property was actually then put will likely be most relevant.

(e) again practically and as a matter of proof, statements made and actions undertaken once a claim relying on s 8(1)(ee) is made or anticipated, will be of less probative value than statements and actions predating that point in time. Affidavit and viva voce evidence proffered by the acquirer as to their intention at the time of acquisition unsupported by contemporaneous documentary evidence or equivalent will likely be of low probative value, especially compared to evidence such as that described above.

(f) neither party bears the onus of proof in respect of s 8(1)(ee). Practically speaking however, it is incumbent on the party making an assertion as to the acquirer’s state of mind at the time of acquisition to provide credible evidence, in line with the above comments, on the basis of which the Court can satisfy itself of the true situation.

• [106] Turning to the present facts, Jack’s case is that he acquired all 12,000 shares in HIL as part of an estate planning exercise. Elizabeth’s case is that Jack also acquired the shares in HIL so as to provide income to meet the household’s expenses.

• [107] Ms Connell says that in any event it is important to focus, which the Judge did not, no doubt because the case before her related to the entire shareholding, on the 4,000 shares Jack retained in his own name, as opposed to focusing on the 8,000 shares Jack effectively gifted (in substance if not in form) to his children, or on the entire shareholding.

• [108] I agree that the focus must be on the one-third shareholding.

• [109] In accepting that Jack intended to use all 12,000 shares for the purposes of estate planning the Judge placed weight on written advice Jack received in October 1992. His then solicitor referred to Jack’s “wish to proceed with the formation of an estate planning company in which the voting shares will be divided between yourself and your two children.” Judge Pidwell considered that this, together with the proposed alternative names for the company referred to in that advice (Property Investments Ltd and Legacy Investments Ltd) corroborated Jack’s evidence given at the hearing that the purpose was to secure HIL and its assets “for the benefit of Jack’s children, by way of legacy”.

• [110] It was nonetheless Jack’s clear intent to retain a one-third shareholding. There is no evidence that he intended at the time to transfer those shares to his children during his life. It could be safely assumed he did not.

• [111] It was also clearly Jack’s intention and the understanding with his children from the outset that, regardless of the formal ownership and directorship of the

company, he would have practical control over the company’s affairs. It appears he is the only shareholder to have received monies from the company and he has been able to obtain that money (whether under the heading of interest, salary, drawings or in the form of the payment of his personal fees and expenses by the company) at will. Despite HIL being, he claims, a “legacy” the company seems to have been his to do with as he wishes.

• [112] I consider it was at least one of Jack’s principal purposes in incorporating HIL (and in particular in acquiring the one-third parcel), to use those shares to fund the household. The “legacy” arrangements were part of a long-term plan but not so much Jack’s purpose, or not his immediate purpose, in acquiring the shares. On Jack’s own evidence the couple needed the income. He said there was no other income. The HIL shareholding has been a means, whether through payment of interest, or salary, or otherwise, of meeting the expenses of the household from immediately after HIL was incorporated.

• [113] Also, I do not agree with Ms Holm that HIL was a passive investment. Nor would I generally expect investment in commercial property to be characterised as such.³⁰ The company provided a form of employment for Jack. He had to identify the Ash Street investment and manage it. As it transpired, he said, that involved mainly book-keeping, but more would reasonably have been expected and was required in connection with the later commercial property.

• [114] While the facts are clearly not as strong as in Rose, there are similarities in that HIL was not a passive investment. The HIL income was intended to meet the couples’ household costs and it was the only, or at least primary, source of income for the household.

• [115] There is one further point raised by Ms Holm. She submits that it is not clear that Jack and Elizabeth would have “needed” the income from HIL to meet the household expenditure. On that basis, she says I should infer Jack was not concerned to obtain a source of income to meet the relationship expenses in acquiring his shareholding in HIL. She points to Mr Beylefeld’s report to suggest that, given the

³⁰ See for example Sloss v Sloss [1989] 3 NZLR 31 (CA) at 36.

funds realised by Jack from the sale of various assets from 1992 onwards, Jack and Elizabeth would have had about $1,400,000 at their disposal between 1992 and 2018.

• [116] That is not a fair construction of Mr Beylefeld’s evidence. Such monies were not at Jack and Elizabeth’s disposal at any one point, or at the time of the acquisition of the HIL shareholding, as is clear from the above summary of the facts. A number of assets were bought and sold over time. No doubt much money was spent over such a long period. What is clear from Jack’s own evidence is that the income earned from or via the HIL shareholding was needed and used for household expenses. If other funds were available, and that is not the tenor of Jack’s evidence, what return was received on them is not evidenced.

• [117] For the above reasons I am satisfied that a principal purpose of Jack’s acquiring the 4,000 shares in HIL (which he retained for a period of nearly 25 years through to 2016) was to provide a form of employment and income for his and Elizabeth’s use. That was for their common use or benefit. Accordingly, pursuant to s 8(1)(ee), the 100 HIL shares still owned by Jack are relationship property, as were the 3,900 shares disposed of by him in 2016. I do not need to make any finding in respect of the other 8,000 shares, as those two parcels are no longer in issue.

Remaining issues under ss 44 and 13: Setting aside of 2016 dispositions and Jack’s claim to extraordinary circumstances/unequal sharing

• [118] Elizabeth relies on s 44 to set aside Jack’s 2016 transfer to each of his children of 1,950 HIL shares. As noted earlier, in the Family Court Elizabeth had also sought to challenge Jack’s earlier disposition of the share capital.

• [119] As a consequence of the findings she had made, Judge Pidwell was not required to address the 2016 dispositions. She said “it would be an unnecessary legal step to set aside the disposition, only to then determine that the claim failed.”³¹

³¹ van der Hoeven v van der Hoeven [2019] NZFC 6186 at [94].

• [120] While I consider that the s 44 argument could be determined without having to resolve any factual disputes as between the parties, Jack’s claim to extraordinary circumstances/unequal sharing under s 13 has to be referred back in any event to the Family Court. I have decided in those circumstances to follow the course suggested by Ms Holm and remit the s 44 issue also.

• [121] I should note that I consider it irrelevant to any s 13 argument, or the case generally, that Elizabeth’s children may be the people to benefit from the outcome of this proceeding.³² First, that may only partially be correct, given the extent of Elizabeth’s outgoings that her son is meeting. Second, exactly the same is true for Jack. Both parties are entitled, especially after a 26-year relationship, to their rightful property share as at the date of separation in terms of the provisions of the Act.

• [122] I also note that I am conscious I have differed in my findings from those of an experienced Family Court Judge who has heard the evidence in the case, at least from one party. However, those differences do not turn on credibility issues but on an assessment of the evidence overall and it seems that, to a material degree, the case was put differently in this Court.

Result

• [123] For all of the above reasons, the appeal is allowed, with the result the one-third shareholding held by Jack in HIL as at July 2016 is determined to be relationship property pursuant to s 8(1)(e) and also s 8(1)(ee), and the order made by Judge Pidwell at [97(e)] of the Family Court judgment is vacated.

• [124] The matter is remitted to the Family Court for determination of the issues under ss 44 and 13 of the Act.

• [125] Elizabeth having succeeded, she is presumptively entitled to costs in this Court. The parties will hopefully agree any issue as to costs, but if they do not, leave is reserved to counsel for Elizabeth to file a memorandum within two weeks from the date of this judgment, with counsel for Jack then having two weeks to reply.

³² The Judge’s comments at [6] and [96] might suggest otherwise.

Memoranda are not to exceed five pages, excluding intituling pages and supporting materials such as invoices.






Hinton J