THAKURDAS v WADSWORTH AND ANOR AS TRUSTEES AND EXECUTORS OF THE ESTATE OF SABA THAKURDAS OF AUCKLAND (DECEASED) [2018] NZCA 516

THAKURDAS v WADSWORTH AND ANOR AS TRUSTEES AND EXECUTORS OF THE ESTATE OFSABA THAKURDAS OF AUCKLAND (DECEASED) [2018] NZCA 516 [21 November 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA413/2018[2018] NZCA 516BETWEEN PETER ARUN THAKURDASAppellantAND GARRY DESMOND WADSWORTH ANDSHARON ANNE ELIZABETHWADSWORTH AS TRUSTEES ANDEXECUTORS OF THE ESTATE OF SABATHAKURDAS OF AUCKLAND(DECEASED)RespondentsHearing: 25 October 2018Court: Miller, Clifford and Gilbert JJCounsel: S R Jefferson QC and L M Reed for AppellantG M Illingworth QC and A K Hyde for RespondentsJudgment: 21 November 2018 at 11.00 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondents costs for a standard appeal on aband A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] The question in this appeal by leave is whether personal representatives of adeceased spouse may bring an application under s 182 of the Family Proceedings Act1980 (the Act).1 The Family Court and High Court both held that the personalrepresentatives may bring an application.2 For reasons we may state quite shortly,we agree.The facts[2] For our purposes the facts are few and uncontroversial. Peter andSaba Thakurdas married in 1991. There is one child of their marriage, Faraaz, who isaged 22.[3] On 13 March 2002, the spouses settled a family trust under which they andFaraaz are discretionary beneficiaries and Faraaz is the final beneficiary. It is commonground that this this is a nuptial trust, entered on the premise that the marriage wouldendure. The trustees were Mr and Mrs Thakurdas and a mutual friend,Mr Trevor Atwood. The trustees held the former family home at Gillies Avenue,Epsom, Auckland, and leased it to Mr and Mrs Thakurdas.[4] The Family Court dissolved the parties' marriage on 15 October 2014. On3 December 2014 Mrs Thakurdas brought proceedings under the Property(Relationships) Act 1976 (the PRA) seeking division of property. Those proceedingshave not been resolved.[5] On 23 January 2015 Mrs Thakurdas succumbed to cancer. Faraaz is the solebeneficiary under her will.[6] The family home has been sold and its proceeds are held in trust pendingresolution of this litigation.[7] On 18 June 2015 the respondents, who are Mrs Thakurdas's personalrepresentatives, brought an application under s 182 of the Act, seeking an order for1 Leave was granted in Thakurdas v Wadsworth CIV-2017-404-1950, 6 July 2018 (Minute ofJagose J).2 Wadsworth v T [2017] NZFC 5833, (2017) 4 NZTR 27-014; and Thakurdas v Wadsworth [2018]NZHC 1106, [2018] NZFLR 451 [HC judgment].equal distribution of the net proceeds of sale of the family home betweenMr Thakurdas and the estate. It is common ground that this application was broughtwithin a reasonable time following dissolution of the marriage. It was met with aprotest to jurisdiction on the ground that her claim under s 182 was personal in natureand abated on her death.The appellant's case[8] Under s 182(1), which we set out below, the Family Court may inquire into theexistence of any nuptial settlement made on the parties to a marriage or civil unionand may make such orders as it thinks fit with respect to property settled, for thebenefit of the parties or the children of their relationship. The Court's power to sointervene arises on dissolution of the marriage or civil union and subsists for areasonable time afterward.[9] Mr Jefferson QC, for the appellant, argued that s 182 is premised on a"continuing provision", to be distinguished from the separate PRA regime for divisionof relationship property. He argued that s 182 is a product of its history in Englishlaw, and he invited us to follow the decision of Ormrod J (as he then was) in D'Este vD'Este, in which the jurisdiction was characterised as personal in nature, such that itabated on death.3May a personal representative apply under s 182(1)?[10] This is a question of statutory interpretation, so we begin with the statutorylanguage. Section 182 provides:182 Court may make orders as to settled property, etc.(1) On, or within a reasonable time after, the making of an order underPart 4 of this Act or a final decree under Part 2 or Part 4 of theMatrimonial Proceedings Act 1963, the Family Court may inquire intothe existence of any agreement between the parties to the marriage orcivil union for the payment of maintenance or relating to the propertyof the parties or either of them, or any ante-nuptial or post-nuptialsettlement made on the parties, and may make such orders withreference to the application of the whole or any part of any property3 D'Este v D'Este [1973] Fam 55 (HC) at 59, referring to Matrimonial Courts Act 1965 (UK),s 17.settled or the variation of the terms of any such agreement orsettlement, either for the benefit of the children of the marriage or civilunion or of the parties to the marriage or civil union or either of them,as the Court thinks fit.(2) Where an order under Part 4 of this Act, or a final decree under Part 2or Part 4 of the Matrimonial Proceedings Act 1963, has been madeand the parties have entered into an agreement for the payment ofmaintenance, the Family Court may at any time, on the application ofeither party or of the personal representative of the party liable for thepayments under the agreement, cancel or vary the agreement or remitany arrears due under the agreement.(3) In the exercise of its discretion under this section, the Court may takeinto account the circumstances of the parties and any change in thosecircumstances since the date of the agreement or settlement and anyother matters which the Court considers relevant.(4) The court may exercise the powers conferred by this section,notwithstanding that there are no children of the marriage or civilunion.(5) An order made under this section may from time to time be reviewedby the court on the application of either party to the marriage or civilunion or of either party's personal representative.(6) Notwithstanding subsections (1) to (5), the court shall not exercise itspowers under this section so as to defeat or vary any agreement,entered into under Part 6 of the Property (Relationships) Act 1976,between the parties to the marriage or civil union unless it is of theopinion that the interests of any child of the marriage or civil union sorequire.The legislation makes no express provision for survivorship of claims.[11] We make several points about subs (1) as a matter of construction:(a) The Family Court's jurisdiction does not arise on application madeunder s 182. Rather, it may inquire into matters encompassed by thesection on or after dissolving a marriage or civil union (or the makingof another relevant order). The legislation accordingly appears toenvisage that the Court may act on its own initiative in the interests ofthe parties, or their children; presumably the occasion may arise whenthe Court is dealing with other matters.(b) The subject matter is any agreement for the payment of maintenance orrelating to property, and any nuptial settlement. If an agreement, it mustbe between the parties. If a nuptial settlement, it must be made on theparties.(c) The Court's jurisdiction is flexible; it may make any order it thinks fitfor the benefit of the parties or their children.[12] Nothing about the statutory language or its evident purpose — that of doingjustice in particular circumstances by modifying arrangements that were premised onan enduring relationship — suggests that only a party to the relationship may invokethe jurisdiction. Such a limitation is inconsistent with language allowingthe Family Court to inquire. On its face, the language of inquiry confers a broadjurisdiction that may be invoked by anyone possessing what the Court finds to be aninterest in such agreement or settlement that is sufficient to warrant such inquiry.The limit to those who may ask the Court to inquire is likely to be found in thepurposes of such inquiry, that of changing arrangements made for the benefit of theparties or their children now that the premise of those arrangements has failed.[13] As counsel observed, the section appears to have its genesis in an Englishpractice of settling property on a child upon his or her marriage.4 We remark that, asHinton J explained in the judgment under appeal, the jurisdiction is in a sense archaic.5In Thomson v Thomson, Jeune P approved a statement that the jurisdiction is intendedto allow the court to divert money settled on a wife where she has been found guiltyof adultery.6 But what matters for present purposes is that history indicates the rightto apply is not confined to a spouse suing in the capacity of a beneficiary or party.[14] The proposition that the jurisdiction is personal in nature is seemingly not nowgood law in England. Ormrod LJ, as he became, later qualified his opinion, saying inPurse v Purse that while death may abate proceedings in divorce, it all depends on therelief claimed.7 And in Barder v Caluori, Lord Brandon said there is no general rule4 Thomson v Thomson [1896] P 263 (CA) at 267–268.5 HC judgment, above n 2, at [62].6 Thomson, above n 4, at 267–268.7 Purse v Purse [1981] Fam 143 (CA) at 155.that a suit in divorce abates with the death of a party.8 It depends, rather, as the natureof the claim and the jurisdiction involved.9[15] As Mr Illingworth QC submitted for the respondents, s 182 is concerned withmoney or property; and a case such as this it is property not owned by the parties butheld on trust for them. A spouse's claim under s 182 is not premised on a continuingrelationship: quite the reverse. It bears no relationship to a claim for, say, loss ofconsortium or specific performance of a contract of service. We find thatthe jurisdiction is not personal in nature and did not abate on the death ofMrs Thakurdas. It follows that the appeal must fail.[16] We add that it is now settled law that s 182 serves an important purpose inrelationship property litigation, allowing courts to address property settled undernuptial trusts. The Supreme Court has held that s 182 empowers a court to review asettlement and remedy the failure of the premise — an enduring relationship — onwhich it was founded, ensuring that one party does not benefit unfairly at the expenseof another.10 It would be inconsistent with that approach to invariably preclude anyclaim by the personal representatives of a deceased former spouse.[17] Both counsel addressed the other parts of s 182, noting that subs (2) and (5)allow personal representatives to apply in certain circumstances. Mr Jefferson soughtto read these provisions down, suggesting that they are confined to the case where anorder under s 182(1) has been made before death. A court might interpret theseprovisions in that way, since they deal with the case where an antecedent order oragreement is being varied, but we agree with the Judge that there is no good reason todo so.11[18] It does not follow that anyone may apply under s 182. Questions of standingmay arise. It may be possible for the settlor or a child of the marriage to apply forexample. We need not determine that here, since it is manifest that the respondentshave a sufficient interest. This is now in substance a dispute between father and son.8 Barder v Caluori [1988] AC 20 (HL).9 At 37.10 Clayton v Clayton [Claymark Trust] [2016] NZSC 30, [2016] 1 NZLR 590 at [60].11 HC judgment, above n 2, at [42]–[44].Mrs Thakurdas wanted to claim her share of relationship property and leave it toFaraaz, and her personal representatives are pursuing that objective by bringing thisproceeding. An inquiry into whether his interest ought to crystallise or remain that ofa discretionary and final beneficiary is comfortably within the scope of s 182.Result[19] The appeal is dismissed.[20] The appellant must pay the respondents costs for a standard appeal on a band Abasis and usual disbursements.Solicitors:Penny Patel Law, Auckland for AppellantNiamh McMahon, Auckland for Respondents