Vivian v Kellerman [2016] NZHC 3163

Vivian v Kellerman [2016] NZHC 3163

The High Court upheld the Family Court's exercise of its s182 discretion to vary the nuptial trust and allocate an equal share of the Woolston property to the wife because the Trust was settled for the family home and the children's interests were adequately protected by ensuring both parents were financially enabled; absent explicit deed clauses removing fiduciary constraints, the Court would not definitively classify the husband's trustee powers as relationship property on Clayton's basis; valuation and calculations by the Family Court were correct except for a discrete EQC/carpet adjustment credited to the husband.

Citation
[2016] NZHC 3163
Parties
Husband; First Appellant; Second Respondent: A A; Wife; First Respondent; Second Appellant: L A
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 December 2016
Procedural Posture
Appeal Under S39 Property (relationships) Act 1976 (rehearing in High Court) / Judgment on Appeal (rehearing)
Outcome
Appeal dismissed except limited adjustment: allow appeal to the extent of crediting $5,381.00 for carpet EQC to husband; otherwise Family Court orders upheld
Legal Topics
Relationship Property, Nuptial Trust, Exercise of Discretion Under S182 Family Proceedings Act 1980, Classification of Trustee Powers as Property, Post Separation Contributions (s18 B), Valuation of Property, GST Treatment, Credit Card and Tax Credit Treatment, Eqc/insurance Proceeds
Family Law Property Law Trust Law Civil Procedure Relationship Property Nuptial Trust Exercise of Discretion Under S182 Family Proceedings Act 1980 Classification of Trustee Powers as Property +5 more

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Parties

A A

Husband; First Appellant; Second Respondent

L A

Wife; First Respondent; Second Appellant

Procedural Posture

Appeal Under S39 Property (relationships) Act 1976 (rehearing in High Court) / Judgment on Appeal (rehearing)

Legal Issues

  1. 1 Whether Family Court erred in exercising discretion under s182 without adequate regard to children's interests
  2. 2 Whether husband's trustee powers were so personal as to constitute relationship property under s2 of the Property (Relationships) Act
  3. 3 Proper GST treatment of trust asset valuation

Ratio Decidendi

The High Court upheld the Family Court's exercise of its s182 discretion to vary the nuptial trust and allocate an equal share of the Woolston property to the wife because the Trust was settled for the family home and the children's interests were adequately protected by ensuring both parents were financially enabled; absent explicit deed clauses removing fiduciary constraints, the Court would not definitively classify the husband's trustee powers as relationship property on Clayton's basis; valuation and calculations by the Family Court were correct except for a discrete EQC/carpet adjustment credited to the husband.

Court Disposition

Appeal dismissed except limited adjustment: allow appeal to the extent of crediting $5,381.00 for carpet EQC to husband; otherwise Family Court orders upheld

Orders

  • Confirm Family Court variation of Trust and order directing husband to pay $156,886.30 to wife as half share of the Woolston property (subject to adjustment for carpet EQC credit)
  • Credit $5,381.00 to husband representing EQC/insurance component for carpet at Woolston property