BURMESTER v BURMESTER [2018] NZHC 47

BURMESTER v BURMESTER [2018] NZHC 47

German law was not established by admissible expert evidence and New Zealand law governs; appellant failed to prove existence of express oral trusts over disputed assets (absence of documentation, inconsistent evidence, adverse inferences for non-disclosure); even if a trust had been proven, s 8(1)(ee) would not...

Source-derived case information.

Citation
[2018] NZFLR 206
Parties
Appellant: Peter Burmester; First Respondent: Beverley Joy Burmester; Second Respondent: Anneliese Burmester; Second Respondent: Sarah Burmester
Court
High Court
Jurisdiction
New Zealand
Judgment Date
2 February 2018
Procedural Posture
Appeal Under Property (relationships) Act 1976 / High Court Rehearing of Family Court Substantive Judgment
Outcome
Appeal dismissed; cross-appeal by respondent granted in part
Legal Topics
Classification of Relationship Property, Express Oral Trust and Three Certainties, Section 8(1)(ee) After Acquired Property, Section 13 Exception to Equal Sharing, Spousal Maintenance, Costs and Enforcement, Jurisdiction Over Foreign Partnership, Valuation and Exchange Rates
Family Law Property (relationships) Law Trusts Conflict of Laws Civil Procedure Classification of Relationship Property Express Oral Trust and Three Certainties Section 8(1)(ee) After Acquired Property +5 more

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Parties

Peter Burmester

Appellant

Beverley Joy Burmester

First Respondent

Anneliese Burmester

Second Respondent

Sarah Burmester

Second Respondent

Procedural Posture

Appeal Under Property (relationships) Act 1976 / High Court Rehearing of Family Court Substantive Judgment

Legal Issues

  1. 1 Whether JFC (joint foreign currency) account funds are relationship property or held on an express oral trust for appellant
  2. 2 Whether German law applies and was proven
  3. 3 Whether s 8(1)(ee) applies to any claimed trust interest

Ratio Decidendi

German law was not established by admissible expert evidence and New Zealand law governs; appellant failed to prove existence of express oral trusts over disputed assets (absence of documentation, inconsistent evidence, adverse inferences for non-disclosure); even if a trust had been proven, s 8(1)(ee) would not convert an uninterrupted beneficial ownership into a new acquisition; therefore funds in the JFC/ANZ account and other contested items are relationship property to be divided, maintenance continuation and costs orders were within judicial discretion, and s 13 did not apply because circumstances were not extraordinary.

Court Disposition

Appeal dismissed; cross-appeal by respondent granted in part

Orders

  • Appeal by Peter Burmester dismissed
  • Funds transferred from the former JFC account now in ANZ account are relationship property and to be divided subject to the adjustments in judgment