SHAW v HAVEN TRUSTEE LTD [2013] NZHC 2961

SHAW v HAVEN TRUSTEE LTD [2013] NZHC 2961 [8 November 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-002457[2013] NZHC 2961BETWEEN GARY TERRANCE SHAWPlaintiffAND HAVEN TRUSTEE LIMITEDDefendantHearing: 10 October 2013Appearances: K G Davenport QC and J Wall for PlaintiffK A Muir and C Tataru for DefendantJudgment: 8 November 2013JUDGMENT OF ASHER JThis judgment was delivered by me on 8 November 2013 at 4.30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:K Davenport QC, Auckland.J Wall, Auckland.Morgan Coakle, Auckland.Introduction[1] Gary and Jane Shaw entered into a relationship in June 2000. In due course they married and had two children. They are now separated. This summaryjudgment application arises out of a disagreement between them concerning themanagement of assets acquired by Mr Shaw and then their family trusts during thecourse of their relationship.[2] The plaintiff Gary Shaw, as a trustee of the OPM Trust, seeks an order for thesale of a property at 264 Sunset Road, Windsor Park, presently occupied by his wifeand children. The defendant is Haven Trustee Ltd, a trustee that is a part-owner ofthe Sunset Road property. The settlor and a beneficiary of that trust is Mrs Shaw.The order is sought under s 339 of the Property Law Act 2007 on the basis that theSunset Road property is co-owned by the OPM Trust and the Haven Trust.Brief facts[3] At the time Gary and Jane Shaw entered into their relationship in June 2000, Mr Shaw was the settlor and trustee of the OPM Trust. By the time they commenced living together on 27 November 2000, the Trust owned at least two properties.[4] On 28 January 2003, the Shaws were married. Their first daughter "O" wasborn on 11 June 2007 and their second daughter "E" on 22 April 2009.[5] On 8 August 2003, Mr Shaw purchased the property at 264 Sunset Road,Windsor Park in his sole name (the Sunset Road property). There was an existingdwelling on the property. The property also had subdivision potential, and a separatedwelling underneath the primary house that could be rented out separately.[6] Mr Shaw had formed the OPM Trust with the assistance of solicitors, RossHolmes Group Ltd. On 11 September 2003, these solicitors were used to assist inthe formation of a new trust, the Haven Trust, where Jane Shaw was the settlor and abeneficiary and Haven Trustee Ltd the trustee.[7] On 1 August 2006 a partnership was formed between the OPM Trust and theHaven Trust. The Sunset Road property, which was still tenanted, was transferredinto the partnership on 1 September 2006.[8] Mr and Mrs Shaw moved into the property at Sunset Road on 24 March 2009and it is common ground that the main dwellinghouse was treated as the familyhome from that point until they separated in November 2010. On separationMrs Shaw stayed in the house with the two children and has continued to occupy itdown to the present time. The separate dwelling is tenanted and rent is being paid.[9] On 21 March 2013, a notice was sent purporting to dissolve the partnershipbetween the OPM Trust and the Haven Trust. Mr Shaw filed this application on8 May 2013. On 11 June 2013 Mrs Shaw applied to the Family Court for ordersrelating to the division of relationship property, and six days later the Shaws'marriage was dissolved. On 11 October 2013, the notice of dissolution for thepartnership expired.The position of the parties[10] Mr Shaw's case is put forward against that factual background. As noted,Mr Shaw, as trustee of the OPM Trust, and Haven Trustee Ltd, as trustee of theHaven Trust, own the Sunset Road property as partners. There is an impassebetween them as to whether the property should be sold. The Court has jurisdictionto make an order for the sale of co-owned property under s 339 of the Property LawAct 2007, and Mr Shaw argues that it should do so. He asserts that there has been norent paid in relation to the dwelling used by his wife and two children, and that theoutgoings have to be supported by using other assets of the trust. He asserts that hisdebt level has increased by over $100,000 as he struggles as trustee to maintainborrowings. He has the children for four nights every two weeks, and he takes theview the children could live in another of their properties in a different suburb that isof less value.[11] Mr Shaw also seeks the payment of occupation rent by Mrs Shaw of $600 perweek for the period of her occupation, and an order for sale by public auction at areserve of not less than $650,000 (although these do not appear as specific reliefsought in the application). He proposes that after payment of mortgages and coststhe balance of the proceeds be held in his solicitor's trust account pending furtherorder of the Court or agreement by the parties.[12] Mrs Shaw in response asserts in essence that the issue of the ongoingoccupation and any issues as to the sale of the Sunset Road property will all be dealtwith in due course in the Family Court proceedings, and that there are a number ofsound defences to the claim that there should be an order for sale. She does notaccept Mr Shaw's claims as to much of the factual background, or the hardship tohim, and asserts that it will impose real hardship on the children to make them moveto a smaller house in a different neighbourhood.[13] I record that these proceedings also related originally to another bachproperty also owned by the two parties at the Karikari peninsula. During the courseof the hearing, agreement was reached as to an interim resolution of issues in relationto that property, and that aspect of the application does not need to be considered inthis judgment.The issues[14] The approach to determining summary judgment applications is now wellsettled. The question is whether the defendant has any defence to the claim; that iswhether there is no real question to be tried in defence.1 The onus is on the plaintiff.The Court will not normally resolve material conflicts of evidence or assess thecredibility of deponents, but need not accept uncritically evidence that is inherentlylacking in credibility.2 The Court may take a robust and realistic approach where thefacts warrant it.3[15] The underlying issue as I see it is whether this case can be approached asMs Davenport QC for Mr Shaw suggests, as a straight forward claim under theProperty Law Act where the Court does not need to go beneath the skin of the legalform of the transactions. To put it more precisely, are any of the substantive points1 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3.2 Eng Mee Yong v Letchumanan [1980] AC 331 (PC).3 Bilbie Dymock Corporation Ltd v Pitul [1987] 1 PRNZ 84 (CA) and Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].that are raised in defence against the application realistically arguable? On myassessment these five points are:(a) Is the disposition of the property out of the name of Mr Shaw and intothe names of the trusts open to being set aside under s 44 of theProperty (Relationships) Act 1976 (the PRA) because it was madewith the intention of defeating Mrs Shaw's claim to the property?(b) Is the deed appointing Jane Shaw as a beneficiary of the OPM Trust and the transfer of the Sunset Road property to the trusts a post-nuptial settlement under s 182 of the Family Proceedings Act 1980(the FPA), and could the Court's discretion be invoked in relation tothat settlement?(c) In any event, should an order be made by the Court in its discretionunder s 339 of the Property Law Act given the claimed hardship?(d) Is the jurisdiction under s 339 to make orders properly invoked giventhe existing PRA proceedings?(e) Should the Court in its discretion grant summary judgment?[16] It would by usual to consider issue (c) first since that goes to the heart of theapplication. However, in this instance I will turn to the exercise of the s 339discretion after considering the arguments raised by counsel in relation to the PRAand the FPA as they are relevant to the exercise of that discretion.Section 44[17] The first issue to be decided is whether it is seriously arguable that under s 44 of the PRA an order could be made setting aside the disposition by Mr Shaw of the Sunset Road property to the Trusts. If so, the Court may make a variety of ordersunder s 44(2), including an order that any person who received the propertyotherwise than in good faith and for valuable consideration shall transfer theproperty to such person as the Court directs.[18] Sections 44(1) and (2)(a) provide:44 Dispositions may be set aside(1) Where the High Court or a District Court or a Family Court is satisfied that any disposition of property has been made, whether for value or not, by or on behalf of or by direction of or in the interests of any person in order to defeat the claim or rights of any person under this Act, the Court may make any order under subsection (2) of thissection....(2) In any case to which subsection (1) of this section applies, the Court may, subject to subsection (4) of this section,—(a) Order that any person to whom the disposition was made and who received the property otherwise than in good faith and for valuable consideration, or his [or her] personal representative, shall transfer the property or any part thereof to such person as the Court directs[.][19] In assessing this defence, there are three matters for the Court to address:(a) Is the Sunset Road home "property" to which s 44 can be applied,given that it was purchased by Mr Shaw, and transferred to the Trusts?(b) Was the disposition made in order to defeat the claim of any person, in this case Mrs Shaw?(c) Did the person who received the property, in this case the two trusts,do so otherwise than in good faith and for valuable consideration?[20] As to the first issue, Ms Davenport argued that at the time of the disposition of the property by Mr Shaw into the name of the two trusts, Mrs Shaw had no rightsin the property.[21] It is by no means clear that this submission would succeed at trial. Thetransfer was unusually not by a partner or spouse to a third party over which theother spouse or partner had no connection. In fact Mrs Shaw was the settlor andtrustee of the Haven Trust which received a half interest in the property as well asthe OPM Trust. However, the property at Sunset Road was acquired in 2003 byMr Shaw in the course of their relationship. There is no precise evidence on how theproperty was paid for. It is certainly arguable that the property, when it was acquiredby Mr Shaw, became relationship property under ss 8(e) and 8(ee) as propertyacquired "after the marriage". Mrs Shaw also claims that she made contributions tothe property which may be a basis for a claim under s 9A(1) and (2).[22] In any event, I consider it strongly arguable that it is immaterial whether atthe time of disposition Mrs Shaw had no existing rights to the property. Section 44relates to the disposition of property generally. The word "property" is defined invery broad terms and is not limited to the disposition of relationship property. Any"property" will do.[23] Moreover, even if Mrs Shaw had at the time of disposition in 2006 lacked any immediate right to the property under the PRA, that would not be fatal to a s 44claim. The focus is on the intention to defeat. If there was an intention to defeatanother party's rights or claims at a future time, that would be sufficient.4[24] In approaching the second issue of whether the disposition was made in orderto defeat the claim or rights of any other person under the Act, a useful starting pointis the observation in Regal Castings Ltd v Lightbody5 in relation to s 60 of the formerProperty Law Act 1952. It was stated that a debtor must be taken to have intendedthe consequences of actions that had the effect of hindering, delaying or defeatingcreditors recourse to that property.6 That approach can be applied by analogy tos 44, even though it must be recognised that Mr Shaw was not an actual debtor giventhe inchoate nature of Mrs Shaw's PRA rights in 2006. Here, if the consequence ofthe disposition was to hinder or defeat Mrs Shaw's rights or foreseeable potentialrights in relation to the Sunset Road property, there may be a good defence based ons 44.[25] There is no specific evidence before the Court showing any expressedintention to defeat on the part of Mr Shaw. However, Mr Muir for Mrs Shawsubmits that there is circumstantial evidence of such an intention. He pointed to the4 Ryan v Unkovich [2010] 1 NZLR 434 (HC) and SMW v MC [2013] NZHC 396 at [59]–[66].5 Regal Castings Ltd v Lightbody [2008] NZSC 87, [2009] 2 NZLR 433.6 At [54]. See also Patterson v Davison [2012] NZHC 2757 at [38].fact that Ross Holmes Group Ltd had acted for Mr Shaw prior to his relationship with Mrs Shaw, and acted on the disposition to the trusts. He observed that Mrs Shaw did not have independent legal advice (although it was suggested to herby Ross Holmes Group Ltd that she take such advice but she chose not to do so).[26] He also pointed to the broad background facts where Mrs Shaw is maintaining that she contributed to the property. Mrs Shaw asserts that the propertywas acquired with the intention that it would become the family home in the future,and that it was developed and improved to a higher standard than otherwise for thatpurpose. Mr Muir submits that it is inconceivable that Mr Shaw was not advised byhis lawyers that a consequence of transferring the property from his name into thename of the two trusts was the potential defeat of a range of possible remedies andexpectations. He points particularly to the right to occupation of the family home ofa spouse arising under s 27 of the PRA. Given that it was intended by the Shaws(according to Mrs Shaw) that the Sunset Road property would be occupied by theirfuture family, an intention to defeat her ability to make a future claim for anoccupation order could be inferred.[27] There is limited material before the Court on which to assess thesesubmissions. The proceedings are at a relatively early stage in the Family Court.There has been no disclosure save for some documents attached to the affidavits.There has been no exploration of what material is available relating to the advicegiven to Mr Shaw by his solicitors.[28] If the property was not relationship property, Mrs Shaw's position wasarguably improved by the disposition as a trust in which she had an interest receiveda half share. But she may have already had an inchoate claim under the PRA.Moreover, I bear in mind that an intention to defeat need not be the sole or mainmotive for the transaction.7 The fact was that the change of the status of the propertyby the disposition could have removed the potential family home from thejurisdiction of the PRA and thereby defeated Mrs Shaw's potential claim.7 Regal Castings Ltd v Lightbody, above n 5, at [53]–[54].[29] Without expressing any view on the strength of the respective submissions,which would be premature, it is my view that the existence of an intention to defeatis reasonably arguable. It may succeed or it may fail. It is too early to say, butMr Shaw has not shown that the argument is bound to fail.[30] The third and final issue is whether it is reasonably arguable that the trustreceived the property otherwise than in good faith and for valuable consideration.There is no clear evidence on whether the consideration was adequate. There is nosuggestion that the Haven Trust did not so receive the property. However, it will beargued that the OPM Trust did not receive the property in good faith, and that theconsideration shown on the agreement for sale and purchase was not in fact valuableconsideration. This argument may well stand or fall on the conclusion of theintention to defeat argument. If a disposition in order to defeat the claim ofMrs Shaw was shown, then it may well be that this third limb would be made out.[31] For the reasons already given in relation to the submission of intention todefeat, it is too early to express a final view, but it does seem to me that for thereasons already given, it is arguable that the transfer was not in good faith and forvaluable consideration, and that s 44 could be invoked in relation to the 2006disposition of the Sunset Road property.Section 182[32] After the filing of the PRA proceedings in May, on 24 September 2013Mrs Shaw filed a claim in the Family Court for the Court to exercise its jurisdictionunder s 182 of the Family Proceedings Act 1980 to make reasonable provision forher so as to meet reasonable expectations arising from a post-nuptial settlement. Thepost-nuptial settlement on which she relies was her appointment as a beneficiary ofthe OPM Trust as the plaintiff's wife on 11 September 2003, and the subsequenttransfer in 2006 of a half share in the property to the OPM Trust. Section 182(1)provides:182 Court may make orders as to settled property, etc(1) On, or within a reasonable time after, the making of an order under Part 4 of this Act or a final decree under Part 2 or Part 4 of the MatrimonialProceedings Act 1963, a Family Court may inquire into the existence of any agreement between the parties to the marriage or civil union for the payment of maintenance or relating to the property of the parties or either of them, or any ante-nuptial or post-nuptial settlement made on the parties, and may make such orders with reference to the application of the whole or any part of any property settled or the variation of the terms of any such agreement or settlement, either for the benefit of the children of the marriage or civil union or of the parties to the marriage or civil union or either of them, as the Court thinks fit.[33] In relation to what is a settlement, the statement in Prinsep v Prinsep hasoften been applied:8The particular form [the settlement] takes does not matter What doesmatter is that it should provide for the financial benefit of one or the other orboth spouses as spouses and with reference to their married state.[34] It is clear that the word "settlement" in s 182 is to be given a wide meaningwhich is not overly technical.9 The section undoubtedly directs attention to thesubstance and intent of the transaction.10 It is directed at preventing one party frombenefitting unfairly from a settlement at the expense of the other.11 It is necessary toidentify all relevant expectations that the parties and in particular the applicant partyhave of the settlement at the time it was made.12 The Court must assess in thechanged circumstances following dissolution the reasonable expectations theapplicant had of the settlement at the time of settlement. The question is whether thedissolution has affected the implementation of the applicant's expectations. Theinterests of all children and other beneficiaries must be considered. Equal sharingprinciples do not underpin s 182.13[35] I consider it arguable that the appointment of Mrs Shaw in her capacity as thesettlor's wife as a beneficiary of the OPM Trust had the effect of conferring on her arange of equitable rights, expectations and remedies in relation to all of the propertyof the OPM Trust. It could be seen as a post-nuptial settlement made by the partiesin terms of s 182, despite the lack of the creation of any new trust. The appointment8 Prinsep v Prinsep [1929] 1 P 225 at 232. See also Ward v Ward [2009] NZCA 139, [2009] 3 NZLR 336 at [23].9 Ward v Ward, above n 8, at [27].10 Chrystall v Chrystall [1993] 10 FRNZ 441 (FC) at 452.11 Ward v Ward [2009], above n 8, at [20].12 At [25].13 Ward v Ward, above n 8, at [30].can be seen as providing for the financial benefit of one or both spouses. It was inthat sense, arguably a post-nuptial settlement. Mrs Shaw from that point had animmediate and ongoing expectation of a share in the Trust's assets. That means thatMrs Shaw may persuade the Family Court to make an order in relation to the wholeor part of the Sunset Road property for the benefit of the children of the marriage orfor her.[36] I make it clear that I express no concluded view on the issue of whether an appointment of a spouse as a beneficiary to a pre-nuptial trust is a post-nuptialsettlement. I am not informed of any authority on the point, and any conclusion willbe dependent on the detailed facts surrounding the settlement. Those facts are likelyto be still the subject of further elaboration and elucidation following discovery orfurther disclosure. While in certain circumstances difficult points of law can beresolved in summary judgment proceedings, this case turning as it does on nuancedquestions of fact that will have to be applied to the criteria in s 182, is not one ofthem.14[37] It will undoubtedly be argued by Mr Shaw at the hearing that the fact that theproperty at Sunset Road did not become an asset of the Trust at the time it waspurchased by Mr Shaw, and was later transferred to the OPM Trust and the HavenTrust is fatal to Mrs Shaw's position. The Haven Trust was controlled by Mrs Shaw,and it may be said that this means that there should be no relief granted. That maybe so. However, I note that under s 182 the Court has a broad discretion to makeorders in relation to the whole or any part of any property settled, and orders can bemade for the benefit of a party to the marriage.[38] A claim under s 182 is pursued in the Family Court, and that is where the claim is filed. It is not therefore a defence that will be heard in this Court unless it istransferred.15 However, I do not consider that the word "defence" in r 12.2 of theHigh Court Rules means a defence that can be raised only in the High Court. In myview, r 12.2 is sufficiently widely worded to cover any matter that can be raised14 Pemberton v Chappell, above n 1, at 3–4.15 Section 14 of the Family Courts Act 1980.which could constitute an answer in a court of law to the claim. The s 182application is an arguable defence to this claim.The exercise of the s 339 discretion[39] Under s 339, a Court may make orders in respect of property owned by co-owners including the sale of the property. Section 342 sets out matters to which theCourt must have regard. One of those matters under s 342(d) is:The hardship that would be caused to the applicant by the refusal of theorder, in comparison with the hardship that would be caused to any otherperson by the making of the order.[40] Under s 342(e) the value of contributions is relevant, and s 342(f) refers to"any other matters the court considers relevant".[41] It is a wide discretion that is given to the Court. It is stated in Hinde McMorland & Sim Land Law in New Zealand:16Under the provisions of the Property Law Act 2007, however, the Court isgiven a wide discretion in every case as to the order to be made and bothparties may raise full and detailed arguments as to the matters bearing on theexercise of that discretion. In this case, the summary judgment procedure isnot so well suited to these applications and it may be that a full hearing ismuch more commonly required.[42] This statement has been recently quoted in part by the Court of Appeal. It has been observed that a Court must, taking into account the relevant considerations,stand back and determine the most just and practical way through an impasse.17[43] Mr Shaw's claims to hardship are not accepted by the Haven Trust.Mrs Shaw on behalf of the trust claims that she is the primary carer of the childrenand that they need to stay in the home. There will be hardship to them if there is anorder for sale. This is not accepted by Mr Shaw. The discretionary factor ofhardship to "any other person" appears to be couched in s 342(d) in deliberatelywide terms. In itself this could include third parties who will suffer harm if an order16 G Hinde and others Hinde McMorland & Sim Land Law in New Zealand (online looseleaf ed, LexisNexis) at [13.021(a)].17 Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [32].is granted, here Mrs Shaw and the children. The children are still beneficiaries of the trust.[44] Therefore, even if Mrs Shaw's PRA and FPA claims fail, there are hardshipissues between the two trusts to be determined under s 339, and it may be that the Haven Trust would obtain an order under s 339 different from that sought by Mrs Shaw. There will be issues also as to what the parties' respective contributionsshould be, and their relevance. It is too early to carry out that exercise.[45] If Mrs Shaw's s 44 PRA claim succeeded, the s 339 balancing exercise would not arise as there would be no co-ownership. If the s 182 claim only was successful, Family Court orders made relating to that property would have to be considered. I accept that there could be orders made which provided compensation under other provisions of the PRA,18 but whether any could or would be made cannot be predicted. A sale now under s 339 could render the PRA and FPA claims in the Family Court nugatory.[46] Thus, the issues arising under s 339 are not suited to summary judgment andshould go to a hearing.Section 4 and the general summary judgment discretion[47] These two issues cross over and are best heard together. Section 4(1) of the PRA provides:4 Act a code(1) This Act applies instead of the rules and presumptions of the common law and of equity to the extent that they apply—(a) to transactions between spouses or partners in respect of property; and(b) in cases for which this Act provides, to transactions—(i) between both spouses or partners and third persons; and(ii) between either spouse or partner and third persons.18 For instance, under s 11B of the PRA.[48] While the Act is expressed to be a code governing property rights in thedefined circumstances, it is subject to the qualifications of express provision to thecontrary19 and the requirement that there be "transactions" between the marriedpersons and civil union and de facto partners.20 Given my previous findings, it is notnecessary to consider the relationship between s 4 and s 339 of the Property LawAct. It may well be arguable that s 4(1), applying as it does only to cases "for whichthis Act provides" does not apply to a property owning partnership of two trusts.The PRA is not stated to have any particular superiority over other statutes.[49] This is not a situation like that in Dyas v Elliott21 where there was a s 339application but no PRA proceedings and no apparent intention to file any suchproceedings. There are PRA proceedings, and in exercising its summary judgmentdiscretion the Court should take into account the obvious intention in s 4 to havetransactions between spouses heard under the PRA. It would in my view runcontrary to s 4(1) of the PRA and the scheme of that Act to allow a party to take outof the general PRA proceedings a particular legal issue and have that determined inisolation, without the broader relationship property issues being taken into account.[50] I take the view also that the Court should not give judgment for the plaintiff under its general discretion under r 12.2(1) of the High Court Rules. The phraseunder that rule is that the Court "may give judgment". That word is given its fulldiscretionary meaning.22 It seems to me that there is the possibility of an injustice if the s 339 application between the parties is considered in isolation to other issues. I do accept that it is possible that in due course it could be determined that the Family Court does not have jurisdiction to determine the fate of the Sunset Road property. However, that is not a matter that can be determined at this stage. The reservations that I have already expressed about the possibility that the discretion under s 339 of the Property Law Act being exercised in Mr Shaw's favour could be reflected by theapplication being refused. This would also prompt me to decline to exercise the discretion. In the absence of full discovery and full disclosure of all of the facts,19 Property (Relationships) Act 1976, s 4(2).20 Section 4(1).21 Dyas v Elliott HC Auckland CIV-2008-404-1021, 16 April 2010.22 Sayles v Sayles (1986) 1 PRNZ 95 (HC) at 99.there would be a danger of oppression or injustice against Mrs Shaw if orders were made under s 339 at this early stage.Conclusion[51] It is seriously arguable that Mr Shaw's right to seek summary judgment as atrustee of the OPM Trust will not be able to be made out in due course because of a decision of the Family Court under s 44 of the PRA that the disposition of the property into the name of the Trust was a disposition made in order to defeat the claims under the PRA of Mrs Shaw.[52] There is also an arguable claim by Mrs Shaw under s 182 of the FPA that the Family Court has jurisdiction to make orders as to the Sunset Road property so as to meet her reasonable expectations arising from a post-nuptial settlement, that settlement being the appointment of Mrs Shaw as a beneficiary to the OPM Trust on 11 September 2003. If so the Court may have jurisdiction to make orders with reference to the application of the whole or part of the Sunset Road property either for the benefit of the children of the marriage, or Mrs Shaw.[53] Even if Mrs Shaw failed under s 44 of the PRA and s 182 of the FPA the Haven Trust would have available to it arguments on the basis of hardship to the beneficiaries of that trust, should a sale be ordered. These would need to be determined at a hearing after detailed disclosure of the background and present situation. The existence of these issues means that the s 339 discretion cannot be fairly exercised. Moreover, success in the Family Court in whole or in part would change the factual grounds on which the discretion would be exercised. At the present time with the PRA and FPA proceedings undetermined, there are clearly strong arguments of hardship given that a sale could render those claims nugatory.[54] Finally, even if I had not reached the views expressed above, my inclination would have been against entering summary judgment based on my discretion. If possible all issues relating to the relationship breakup should be determined together. There is a risk of injustice if issues are heard separately, and at an early stage, when all the facts and circumstances may not be disclosed. If a hearing of all issues at the same time is not possible, there should be a procedure determined for the orderly andfair determination of issues in the Family Court and High Court, possibly with the Family Court proceedings being considered first or all matters being transferred to the High Court.Result[55] The application for summary judgment is dismissed.[56] The parties have leave to apply for further directions as to the future progress of the proceeding. Counsel should give consideration to how the case should be best resolved procedurally, and endeavour to find a constructive way forward.Costs[57] If the parties are unable to agree on how costs should be dealt with, they may file submissions; the defendant within seven days and the plaintiff within a further seven days...Asher J