DYER v GARDINER [2020] NZCA 385

DYER v GARDINER [2020] NZCA 385 [2 September 2020]NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980AND S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA724/2018[2020] NZCA 385BETWEEN WAYNE DYERAppellantAND JULIA FRANCES GARDINERFirst RespondentJULIA FRANCES GARDINER ANDPETER JOHN CLARK AS TRUSTEES OFTHE KARAKA TRUSTSecond RespondentsHearing: 30 June 2020 and 1 July 2020Court: French, Miller and Collins JJCounsel: R J B Fowler QC with G M Letts and R M A Purchas forAppellantR A Newberry for First RespondentA S Butler and F M L Gush for Second RespondentsJudgment: 2 September 2020 at 4.00 pmJUDGMENT OF THE COURTA The appeal is allowed in part.B Costs to the appellant for a standard appeal on a band A basis with usualdisbursements. We certify for two counsel.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Dyer and Ms Gardiner, whose 12 and a half year marriage ended on1 June 2012, continue to be engaged in a protracted relationship property dispute.At the centre of their dispute is the Karaka Trust (the Trust) settled by Ms Gardinerbefore the parties met.[2] Ms Gardiner has been a trustee since the Trust was settled. She is alsoa discretionary beneficiary. Mr Dyer became a discretionary beneficiary when theparties married. Fifteen months later, Mr Dyer became a trustee. He ceased to bea trustee and a discretionary beneficiary when the parties separated.[3] The principal beneficiary of the Trust is "Kevin", an adult son of Ms Gardiner.Kevin has a number of health issues that render him dependent upon Ms Gardiner.[4] When the parties separated the principal assets of the Trust were:(a) Shares worth $432,215.(b) A house that was purchased after the parties married and which was thefamily home during the course of their marriage. The net value of thathouse at the date of the parties' separation was approximately$675,000.[5] Mr Dyer's proceeding in the Family Court relied on ss 44, 44C and 11B of theProperty (Relationships) Act 1976 (the Act) and s 182 of the Family Proceedings Act1980. We examine those provisions later in this judgment. For introductory purposes,it is sufficient to note:(a) Section 44 may be engaged where property has been diverted to a trustwith the intention of defeating the rights of another party under the Act.Section 44C may apply where the diversion of relationship property toa trust has the effect of defeating another party's rights to that property.There are other important qualifications to the application of ss 44 and44C, which we examine later in this judgment.(b) Section 11B of the Act may apply where a family home is not ownedby one of the parties to the marriage. Section 11B requires the Courtto award each party to the marriage an equal share in such part of theparties' relationship property as it thinks just in order to compensate forthe absence of an interest in a family home.(c) Section 182 of the Family Proceedings Act empowers a Court to varya nuptial settlement where it is necessary to do so to achieve fairnessand justice to the parties of a marriage that has ended.[6] The Family Court made orders:1(a) Under s 44(2) of the Act requiring the Trust to pay Mr Dyer $216,107,being half the value of the shares held by the Trust at the date of theparties' separation.(b) Under s 11B(2) of the Act requiring Ms Gardiner to pay Mr Dyer$116,000 being the sum the Judge said was available for allocationfrom the parties' current account with the Trust. The Family Courtordered all of that sum be paid to Mr Dyer to compensate him for theabsence of a family home.[7] Although it concluded there had been post-nuptial settlements relating tomortgage repayments and costs associated with the house owned by the Trust,the Family Court declined to make any of the orders sought by Mr Dyer unders 182 of the Family Proceedings Act.[8] Ms Gardiner and the Trust appealed the orders we have summarised in[6(a) and (b)] and Mr Dyer cross-appealed the refusal to make orders under1 Dyer v Gardiner [2016] NZFC 8362 [Family Court judgment] at [294].the Family Proceedings Act and what he said were deficiencies in the orders made bythe Family Court under the Act.[9] On appeal, the High Court:2(a) set aside the orders made in favour of Mr Dyer by the Family Courtunder s 44(2) of the Act;3(b) held there was no jurisdiction to require Ms Gardiner to pay, pursuantto s 11B(2) of the Act, all of the available amount in the parties' currentaccount with the Trust;4(c) remitted back to the Family Court various factual issues that requiredfurther determination;5 and(d) dismissed all aspects of Mr Dyer's cross-appeal.6[10] The High Court and this Court have granted leave to Mr Dyer to appealnine questions of law. We explain those questions at [64] to [65].BackgroundThe settlement of the Karaka Trust[11] Ms Gardiner was born in 1956. She became a solo parent at a young age andstarted working for a sharebroking company when she was 19. Ms Gardiner undertookextra-mural studies and obtained the qualifications required to become a member ofthe New Zealand Stock Exchange. Her first marriage ended in 1988 at which pointshe again became the sole provider for her son, Kevin. Although he is an adult, Kevincontinues to be dependent upon Ms Gardiner for care and support. Recently, Kevinhas become a father. His child is now cared for by Ms Gardiner.2 Gardiner v Dyer [2018] NZHC 355 [High Court judgment].3 At [433].4 At [438].5 At [437].6 At [434].[12] In 1997, Ms Gardiner purchased a cottage in Karaka Bay for $272,500.On 1 September 1997 she settled the Trust. There were two reasons that underpinnedMs Gardiner's decision to settle the Trust:(a) She wished to protect her assets from any professional liability claimsthat might be made against her.(b) She wished to have a mechanism to provide financial support forKevin.[13] The key terms of the Trust provided that:(a) Ms Gardiner and Mr Clark, a legal executive specialising in trusts, wereappointed trustees.(b) Ms Gardiner was empowered to appoint and remove any trustee.(c) Ms Gardiner and "any future husband" of Ms Gardiner and anychildren of the primary beneficiaries were included in the list of thosewho were to be considered as discretionary beneficiaries.(d) Kevin, and any other children of Ms Gardiner, were to be the primarybeneficiaries.(e) The trustees could exclude any discretionary beneficiary fromthe Trust.[14] When the Trust was settled it acquired the Karaka Bay cottage fromMs Gardiner for $272,500. The purchase price became a debt the Trust owedMs Gardiner. Ms Gardiner then began a process of forgiving the debts owed to her bythe Trust. The Trust paid the mortgage and outgoings associated with the Karaka Baycottage. Ms Gardiner was required to maintain the cottage. She was, however, notrequired to pay rent to the Trust for her occupation of that property.[15] Ms Gardiner met Mr Dyer in 1998. They started living together inthe Karaka Bay cottage in October 1999 and married on 19 February 2000.[16] At the time the parties married, the Trust's assets comprised:(a) the cottage at Karaka Bay;(b) shares valued at about $30,000 that Ms Gardiner had transferred tothe Trust; and(c) an insurance policy over the life of Ms Gardiner.[17] The Trust's debts comprised:(a) a mortgage of approximately $145,000; and(b) a current account debt to Ms Gardiner of approximately $110,000.[18] On 6 October 2000, a meeting took place between Mr Dyer, Ms Gardiner andMr Clark. At that meeting Mr Dyer, who had become a discretionary beneficiary ofthe Trust when the parties married, made plain his desire to become a trustee. He alsoasked for the Trust to be amended to enable him to become the beneficiary of50 per cent of the Trust's assets five years from the date of the parties' marriage.Mr Clark described that meeting as "acrimonious". No agreement was reached at thattime concerning Mr Dyer's role as a trustee or his entitlement to Trust assets.[19] On 9 October 2000, Mr Dyer disposed his portfolio of shares to the Trust for$46,960.16. He had acquired those shares from income he earned after the partiesmarried. Where it is convenient to do so, we shall refer to this transaction as"the 2000 share disposition".[20] Mr Dyer was appointed as the third trustee of the Trust on 15 May 2001.He remained as a trustee until 29 May 2012 when he was removed from that role byMs Gardiner, two days before the parties separated.Sale of Karaka Bay cottage and purchase of Ventnor Street[21] On 29 June 2001, the Karaka Bay cottage was sold for $380,000. At the sametime the Trust purchased a home at Ventnor Street, Seatoun for $815,000.The purchase price for the Ventnor Street home comprised:(a) $80,000 that Ms Gardiner had received as a lump sum redundancypayment from her previous employer;(b) $309,254.00 being the net proceeds from the sale of the Karaka Baycottage; and(c) a mortgage of $425,746, which the trustees took out withthe Westpac Bank.[22] Ms Gardiner and Mr Dyer were required by the Trust to maintainthe Ventnor Street home. They were not required to pay rent. It was accepted inthe Courts below that the market rent that would otherwise have been payable foroccupying the Ventnor Street property during the course of the parties' marriage was$507,360.[23] The Ventnor Street property was the family home of Ms Gardiner and Mr Dyeruntil they separated. The Ventnor Street property was sold by the Trust on14 July 2014 for $1.4 million. The net proceeds of the sale of the Ventnor Streetproperty were $619,256.62.[24] For completeness, we record that in February 2011 the Trust entered intoa contract to purchase an apartment at Clyde Quay, Wellington for $1,864,922.The apartment was purchased by the Trust in 2014 with the assistance of a mortgageof $1,230,000. We understand Ms Gardiner now lives in this apartment.Shares in Craigs Investments Partners[25] At the time the parties married, Ms Gardiner was employed by Merrill Lynch.She was made redundant from that company in early 2001. Ms Gardiner took upemployment with ABN Amro Craigs Ltd (AAC) with effect from 2 March 2001.[26] Under her new employment contract, Ms Gardiner was entitled to receive7,500 shares in AAC by paying AAC $105,000. That sum was arranged througha "sign on" payment of $45,000 from AAC and a limited recourse loan of $60,000 thatAAC arranged for its employees with the National Bank. Under her employmentcontract Ms Gardiner could nominate a third party as the purchaser of the 7,500 AACshares. Ms Gardiner nominated the Trust as the purchaser of those shares. The trusteespaid for those shares by borrowing $45,000 from Ms Gardiner and by becomingthe borrower of the $60,000 that was used to acquire the shares. Dividends receivedfrom the shares were used to service the repayment of the loan.[27] In 2009, AAC offered further shares to its employees. On this occasionMs Gardiner was required to purchase the shares in her own name and not transferthem to a third party until an embargo on transferring the shares had lapsed.Ms Gardiner therefore purchased 3,258 shares in her name. She paid for those sharesthrough the Trust and she signed a declaration that she held those shares on behalf ofthe Trust.[28] On 24 June 2010, AAC, which by this time had become Craigs InvestmentsPartners (CIP), restructured its shares. As a consequence:(a) 5,629 of the original 7,500 shares acquired by the Trust wererepurchased by CIP for $168,405.61. That sum was paid to the Trust.(b) The balance of the 1,871 shares acquired by the Trust in 2001 wereexchanged for shares in CIP. The Trust became the owner ofthe exchanged shares.(c) 813 of the 3,258 shares in AAC that Ms Gardiner had acquired in 2009and held in trust for the Trust were exchanged for shares in CIP.Those exchanged shares were also acquired by the Trust.(d) The balance of the shares acquired in 2009 were sold for $73,148.That sum was paid to the Trust.[29] The Family Court found that at the time the parties separated the Trust'sprincipal assets were:(a) the Ventnor Street property valued at approximately $1,350,000; and(b) shares valued at approximately $432,215 of which, $207,900 were"CIP" shares and the remaining $224,315 were general shares.[30] The Family Court also found the Trust's principal liabilities at the timethe parties separated were:(a) a mortgage over Ventor Street, $675,000; and(b) the current account in favour of Ms Gardiner, $420,871.Thus, on the basis of these figures the Trust's assets at the time the parties separatedhad a net value of $686,344.Mr Dyer's finances during the course of the marriage[31] Mr Dyer, who was born in 1962, worked as a commercial real estate agent.He had also been married before the commencement of his relationship withMs Gardiner.[32] The Courts below concluded Mr Dyer had minimal assets at the timethe parties' relationship commenced. The assets he did have comprised a car worthapproximately $4,000 and some household chattels, the value of which was neverdetermined. Mr Dyer also had a tax liability of $15,821 at the time of the parties'marriage.[33] Mr Dyer's gross income during the course of the marriage was $1,280,000.His tax deductions during that period were, however, $990,000. The High Court foundMr Dyer's annual net income during the marriage was $24,000, but that most of thatincome was generated during the first half of the parties' marriage and that duringthe last five years of the parties' marriage, he "had virtually no taxable income".7[34] Mr Dyer had his office in the home. He claimed tax deductions in relation tohis office.[35] Mr Dyer was able to claim other tax deductions that benefitted himself andMs Gardiner:(a) Cars:In his judgment, Churchman J said Mr Dyer acquired "a string ofluxury motor vehicles" during the course of the parties' marriage.Those vehicles were mainly funded through loans that were guaranteedby the Trust. The vehicles were registered in Mr Dyer's name.This enabled him to claim the GST, depreciation and other costsassociated with the vehicles as deductible business expenses.Ms Gardiner also benefitted from these arrangements as, a number ofthe vehicles were used by her.(b) Entertainment expenses:Mr Dyer had high entertainment expenses that involved him spendingapproximately $600 per week socialising with potential businessclients. Some of his entertainment expenses included purchases ofbottles of wine and other items that Mr Dyer and Ms Gardinerconsumed.7 At [62].[36] Mr Dyer's relationship with the Inland Revenue Department (the IRD) wasdescribed by Churchman J as "chequered". Before his marriage to Ms GardinerMr Dyer had been subject to six assessments by the IRD. He did not file tax returnsduring the first five years of the parties' marriage and he failed to inform IRD of hisnew addresses. In 2005, the IRD advised Mr Dyer that he had been assessed as owing$199,000 in unpaid tax, including interest and penalties. The IRD conducted an auditof Mr Dyer's tax affairs. During this process Mr Dyer, through his accountant,informed the IRD that:(a) He was a "potential discretionary beneficiary of the Trust" and he hadno entitlement to money from the Trust.(b) He was reliant on his wife for financial support.(c) He had no assets.(d) A loan facility had been arranged through the Trust to settle his taxliability.[37] The IRD agreed Mr Dyer could settle his tax liability by paying $100,000.The evidence in the Courts below was that had Mr Dyer not reached agreement withthe IRD, then he was at risk of being bankrupted. The payment to the IRD wasarranged by the Trust guaranteeing a loan for Mr Dyer of up to $280,000. That facilitywas not fully utilised by Mr Dyer. Following the parties' separation, the Trustrenegotiated its guarantee down to $200,000. Mr Dyer, however, defaulted on hisobligations under the loan. This required Ms Gardiner to take out a personal loan of$200,000 to cover the Trust's obligations as guarantor of Mr Dyer's debt.[38] At the time the parties separated, Mr Dyer's current account in the Trust wasin deficit. He owed the Trust $29,426.[39] Mr Dyer accumulated other liabilities during the marriage. The attention ofthe lower Courts was drawn to a litigation debt of $60,000 relating to legal fees.The Family Court and the High Court both found that debt was paid by the Trust.We will return to that particular issue later in this judgment.Ms Gardiner's memoranda of wishes[40] During the early years of the parties' marriage Ms Gardiner executedthree memoranda of wishes, the last of which she signed on 29 January 2004. In thatmemorandum Ms Gardiner reminded the trustees of her wish that they provideprimarily for Kevin in the event of Ms Gardiner's death. She also said that if she diedthen it was her wish that the trustees would provide Mr Dyer with up to $1 millionfrom the Trust's assets to enable him to purchase a place in which to live.The Family Court judgment[41] Mr Dyer commenced relationship property proceedings on 3 May 2013 againstMs Gardiner and the Trust. The hearing in the Family Court took place over six daysin September 2016. A key plank in Mr Dyer's relationship property claim was that theVentnor Street property and the shares held by the Trust at the time the partiesseparated were never validly transferred to the Trust and were therefore relationshipproperty and that he was entitled to receive a half-share of those assets. In itsjudgment, delivered on 19 December 2016, the Family Court rejected this aspect ofMr Dyer's claim, holding that the Ventnor Street house and the shares were all validlyacquired by the Trust.8Sections 44 and 44C of the Act[42] Mr Dyer also claimed:(a) that the disposition of assets to the Trust should be set aside unders 44 of the Act; or(b) that he should be paid compensation under s 44C of the Act.8 Family Court judgment, above n 1.Under these claims Mr Dyer sought a half-share of the net sale proceeds ofthe Ventnor Street property and a half-share of the current values of the shares held bythe Trust and dividends on those shares from the date of the parties' separation to thedate of the hearing.[43] The Family Court held Mr Dyer had no entitlement to an interest inthe Ventnor Street home.[44] The Family Court, however, made the following findings in relation tothe shares held by the Trust:(a) Ms Gardiner disposed all of the AAC and CIP shares to the Trust.9(b) That the AAC and CIP share dispositions were made with the intentionof defeating Mr Dyer's interest in those and subsequent shares acquiredby the Trust.10(c) There was a lack of good faith by Ms Gardiner and Mr Clark in relationto the disposition of the AAC and CIP shares through failing to keepMr Dyer fully informed about all aspects of those share dispositions.11(d) The only consideration paid by the Trust for the AAC shares wasthe $45,000 credited to Ms Gardiner's current account in 2001.The Trust did not pay anything else for the AAC or CIP shares.12(e) That the Court should exercise its discretion to value the CIP sharesand the general share portfolio as at the date of the parties' separation.139 At [126] and [134].10 At [148]–[159].11 At [164].12 At [169].13 At [172].(f) Mr Dyer was entitled to a payment by the Trust of $216,107 being halfthe value of the shares held by the Trust at the date of the parties'separation.14[45] Mr Dyer also sought a sum representing half of the value of the funds gifted tothe Trust by the parties in reduction of the debts owed to them by the Trust.Ms Gardiner accepted that between them the parties had disposed $278,604 tothe Trust through their gifting programmes. Of that sum $62,604 had been gifted byMr Dyer and $216,000 by Ms Gardiner. The Family Court made the followingfindings in relation to the parties' gifts to the Trust:(a) When she made her dispositions to the Trust through gifting,Ms Gardiner did not intend to defeat any claim Mr Dyer may have hadto relationship property.(b) The Court should not exercise its discretion to compensate Mr Dyer fordispositions made to the Trust through Ms Gardiner's gifting becausehe had lived in the Trust's home rent free and placed the Trust atfinancial risk through his conduct.[46] The Family Court determined that as Mr Dyer was receiving an award unders 44(2) of the Act in relation to the shares held by the Trust, it was not appropriate toalso provide him with compensation under s 44C for any of those shares.Section 11B of the Act[47] In the Family Court, Mr Dyer accepted that as at the date of the parties'separation, Ms Gardiner's current account in the Trust was $420,871 and that his wasminus $29,426. A variation order was required however on 21 June 2013, whenMr Dyer defaulted on his obligation to repay the $200,000 that had been borrowedfrom ANZ and which the Trust had guaranteed. The variation order reducedMs Gardiner's current account by $200,000 to reflect the loan she had taken out to14 At [177].cover the Trust's guarantee of Mr Dyer's debt. Thus, by the date of the hearing thenet current account of the parties in the Trust was $191,445.[48] The Family Court held that in addition to his pre-marriage tax debt of $15,821,Mr Dyer had incurred a further liability of $60,000 for legal fees associated withlitigation concerning his business.15 The Family Court Judge found those sums hadbeen paid by the Trust even though they were not relationship debts.[49] The Family Court readjusted the sums that should be allocated from the netcurrent account in the following way:Net current account $191,445.00Less Mr Dyer's legal fees $ 60,000.00Less Mr Dyer's pre-marriagetax liability $ 15,821.00___________Total $115,624.00___________[50] The Family Court erroneously said the calculations we have set out at [49]produced a net figure of $116,445. The Family Court rounded that down whendeciding that the relationship property component of the current account that wasavailable for division between the parties was $116,000.[51] In order to compensate Mr Dyer under s 11B of the Act, for the absence of anyinterest in the family home, the Family Court Judge awarded Mr Dyer all of the parties'available current account, namely $116,000.Section 182 of the Family Proceedings Act[52] The Family Court made the following findings in relation to Mr Dyer's claimunder s 182 of the Family Proceedings Act:15 At [252].(a) Neither the settlement of the Trust nor the dispositions to the Trust priorto marriage were ante-nuptial settlements within the meaning ofs 182 of the Family Proceedings Act.16(b) The mortgage repayments and other payments made on behalf ofthe Trust in relation to the Ventnor Street property were post-nuptialsettlements.17(c) However, in view of Mr Dyer's conduct, the net value of the Trustassets and the benefits he obtained from the Trust, the Family Courtwould, if it was required to make any order under s 182 of theFamily Proceedings Act, not provide Mr Dyer with a remedy thatexceeded his entitlement under s 44 of the Act.18Summary of Family Court judgment[53] The final orders made by the Family Court required:(a) The Trust to pay Mr Dyer $216,000 pursuant to s 44(2) of the Act; and(b) Ms Gardiner to pay Mr Dyer $116,000 under ss 11B(2) and 25 ofthe Act.[54] Interest was payable at five per cent per annum on both sums.The High Court judgment[55] The grounds of appeal and cross-appeal required the High Court Judge to focusupon:(a) whether the dispositions to the Trust could be set aside or otherwiseaddressed under ss 44 and 44C of the Act;16 At [215].17 At [220].18 At [241].(b) the extent of the parties' relationship property;(c) whether Mr Dyer was entitled to compensation under s 11B of the Actfor his lack of interest in a family home; and(d) whether Mr Dyer's claim under s 182 of the Family Proceedings Actshould be upheld.[56] Many of Mr Dyer's submissions in the High Court were based on his claimsthat he had made significant contributions to both the marriage and to the Trust andthat his contributions were similar to those of Ms Gardiner's contributions.[57] In his judgment, which was delivered on 8 March 2018, Churchman J madethe following factual findings:(a) Ms Gardiner's asset position at the commencement of the parties'relationship was likely to have been something over $250,000.That sum included her current account with the Trust. In contrast,Mr Dyer brought no assets to the relationship.19(b) The total value of assets transferred by Mr Dyer to the Trust was$62,604, with most of that value being the shares worth $46,960 thathe transferred on 9 October 2000.20(c) Mr Dyer received capital advances from the Trust between 2008 and2012, which totalled $29,426. This resulted in a deficit for that sum inMr Dyer's current account with the Trust.21(d) Mr Dyer undertook maintenance and a modest amount of additionalwork on the Ventnor Street property, but that was pursuant to19 High Court judgment, above n 2, at [40].20 At [93].21 At [93].the obligation of Mr Dyer and Ms Gardiner as tenants of the Trust tomaintain that property.22(e) Mr Dyer derived considerable benefits from the Trust, which includedhis ability to acquire luxury vehicles, the payment of $60,000 in legalfees and the ability to borrow money to pay his tax liabilities.23Sections 44 and 44C of the Act[58] In relation to the issues that arose under ss 44 and 44C of the Act,the High Court Judge decided:(a) That when the Trust acquired the 7,500 shares in AAC in 2001, onlyMs Gardiner's right to nominate who received those shares wasrelationship property. There was no evidence concerning the value ofthe right of nomination. The Trust paid adequate consideration for the2001 shares, namely $45,000 which was a debt that the Trust owedMs Gardiner, and the $60,000 recourse loan which was repaid bythe Trust in 2005.24(b) There was no evidence Ms Gardiner knew in 2001 that the right ofnomination was relationship property.25(c) Although the 2009 AAC shares were acquired by Ms Gardinerpersonally, the funds used to purchase those shares came from the Trustthat had received dividends from the 2001 shares and other shares.As the 2001 shares were not relationship property, the dividends thatflowed from them were also not relationship property. The Judgereasoned the Trust funds that were used to pay for the 2009 AAC shareswere not relationship property.2622 At [113].23 At [79].24 At [235] and [243].25 At [246].26 At [250] and [254].(d) The 2010 CIP shares acquired by the Trust involved the Trustsurrendering its existing shareholdings. That was valuableconsideration.27(e) In summary, the High Court found that none of the CIP shares held bythe Trust was relationship property.28[59] The High Court also found that the Family Court Judge's decision to declinerelief under s 44C of the Act was appropriate because of Mr Dyer's conduct andthe benefit he received from living in the Trust's property.29[60] The High Court found there was nothing in the gifting arrangements by theparties to the Trust that warranted Mr Dyer receiving a share of the Trust's generalshare portfolio.30Section 11B of the Act[61] In relation to the appeals concerning s 11B of the Act, the High Court Judgeheld the Family Court erred by awarding Mr Dyer all of the parties' remaining balancein the current account, being $116,000 plus interest at five per cent.The High Court Judge held that the text of s 11B(2) of the Act required theFamily Court to order an equal share in the parties' relationship property. He remittedback to the Family Court the task of determining exactly what 50 per cent ofthe parties' current account balance was.31Section 182 of the Family Proceedings Act[62] In relation to the appeal and cross-appeals concerning s 182 ofthe Family Proceedings Act, the High Court found:27 At [257].28 At [258].29 At [430].30 At [433].31 At [417].(a) Mr Dyer had failed to adequately specify what relief he was seekingunder s 182 of the Family Proceedings Act and what transactions wereactually post-nuptial settlements.32(b) There was no unfair benefit to Ms Gardiner from the parties payingmaintenance and associated costs associated with living atVentnor Street.33(c) The mortgage, rates and insurance premiums were already recognisedin the parties' current account with the Trust.34(d) The Family Court Judge was wrong to conclude that the mortgagepayments and other payments were post-nuptial settlements.35(e) In all other respects the High Court Judge aligned himself withthe decision of the Family Court when it declined to give Mr Dyer anyrelief under s 182.Summary of High Court judgment[63] In summary, the High Court set aside the Family Court findings that Mr Dyerwas entitled to be compensated $216,107 by the Trust under s 44(2) of the Act.The High Court Judge also set aside the Family Court's orders under s 11B of the Actand concluded that there was no basis for any remedy under s 182 ofthe Family Proceedings Act.Leave to appeal[64] On 30 October 2018, Churchman J granted Mr Dyer leave to appeal onthe following five questions, which focus upon s 182 of the Family Proceedings Act:3632 At [356].33 At [369].34 At [370].35 At [371].36 Dyer v Gardiner [2018] NZHC 2796 at [26].(a) In the circumstances of this case, were the dispositions of relationshipproperty to the trust, in which both spouses were beneficiaries, nuptialsettlements for the purposes of s 182?(b) In circumstances where a written resolution by the trustees of the trustrecords the basis upon which the spouses may occupy a property suchthat mortgage payments are not required by the spouses, and such thatmortgage payments and other expenses made by the spouses arerecorded in the trust accounts as capital advanced as an interest freeloan to the trust repayable upon demand, is it correct for the Court torecast:(i) such interest free capital advances to the trust; and(ii) gifting by the spouses to the trust;as quid pro quo occupation costs rather than settlements?(c) Was the disposition of Ms Gardiner's employee share entitlementsand general share portfolio to the trust and the gifting of Mr Dyer'sshares to the trust, nuptial settlements for the purposes of s 182?(d) Were the memoranda of wishes executed by Ms Gardiner during themarriage recording that Mr Dyer would receive the bulk of the benefitof the trust assets if Ms Gardiner died relevant to the Court'sconsideration of the parties' intentions when assets were settled to thetrust during the marriage?(e) Should the Court consider the respective benefits received from thetrust by the parties during the marriage or the comparative benefitswhich would be enjoyed or lost by each party following thedissolution of the marriage?[65] On 27 June 2019, this Court granted leave to Mr Dyer to pursue the followingfour additional questions of law:37(a) Whether the High Court erred in finding that the applicant was notentitled to any orders under either s 44(2) and (3) or s 44C(2) ofthe Property Relationships Act 1976 in respect of the CIP sharesincluding their dividends or proceeds and/or the general shareportfolio acquired by the second respondent trustees by nomination,gifting or otherwise during the marriage?(b) If it is found that the applicant is entitled to any orders under eithers 44(2) and (3) or s 44C(2), whether the High Court Judge erred invaluing the CIP shares and/or the general shares at the date ofseparation rather than the date of the hearing ?(c) Whether the High Court Judge erred in finding that the $60,000litigation costs were a personal debt and not a relationship debt?37 Dyer v Gardiner [2019] NZCA 262 at [1].(d) Whether the High Court Judge erred in his interpretation of s 11B ofthe Property Relationships Act when he held that the only remedyavailable under the section was to award equal shares?[66] There is a minor error in the way this Court framed the second of its questionsbecause it was the Family Court, not the High Court that valued the CIP and generalshares at the date of the parties' separation.[67] We shall now explain the key purposes and principles of the Act before dealingwith the questions that arise under ss 44, 44C and 11B of the Act. We shall thenconsider the questions that arise under s 182 of the Family Proceedings Act.Purpose and principles of the Act[68] The purposes and principles of the Act help inform an understanding ofthe policy of the legislation. The purposes of the Act are recorded in s 1M and includerecognising the equal contribution of both spouses to a marriage and providing fora just division of relationship property when a relationship ends.[69] The principles of the Act, which are recorded in s 1N, include recognising thatmen and women have equal status, that all forms of contribution to a marriage shallbe treated as equal and that a just division of relationship property requires regard tobe had to the economic advantages or disadvantages to spouses arising from theirmarriage. A fourth principle set out in s 1N(d) of the Act records that questions arisingunder the Act about relationship property shall be "resolved inexpensively, simply,and speedily as is consistent with justice".[70] Of all the principles set out in s 1N of the Act the one that has been leastobserved by the parties to this litigation is the requirement that relationship propertydisputes be resolved expeditiously and in accordance with justice. One of theconsequences of the approach of Mr Dyer and Ms Gardiner has been that factualissues, that should have been resolved years ago, continue to weigh upon the questionsthat we have been asked to answer. We have accordingly been placed in theunsatisfactory position of endeavouring to provide answers without the benefit of allfactual disputes having been determined.Section 44 of the Act[71] Section 44 empowers a court to set aside dispositions of property that are madeto defeat the rights of any person under the Act. Section 44 applies to any property.It is not confined to dispositions of relationship property. Section 44 may apply todispositions to any third parties.[72] Section 44(1) is the "gateway" subsection to s 44. It provides that wherea court "is satisfied that any disposition of property has been made, whether for valueor not, by any person in order to defeat the claim or rights of any person underthis Act, the court may make an order under [s 44(2)]".[73] Section 44(2)(a) provides for the transfer of property by any person to whomthe disposition was made. The relevant provisions state that, subject to s 44(4), in anycase to which s 44(1) applies, a court may:(a) order that any person to whom the disposition was made and whoreceived the property otherwise than in good faith and for valuableconsideration, transfer the property or any part thereof to suchperson as the court directs Section 44(2)(b) provides for compensation to be paid by the person to whom thedisposition was made. The relevant provisions state that the court may:(b) order that any person to whom the disposition was made and whoreceived the property otherwise than in good faith and for adequateconsideration, pay to such person as the court directs, a sum notexceeding the difference between the value of the consideration(if any) and the value of the property Section 44(2)(c) is similar to s 44(2)(b). The difference between the two provisions isthat s 44(2)(c) provides for the transfer of an interest in property by any person whoreceived that interest from the person to whom the disposition is made (that is,s 44(2)(c) applies to a second transferee). Section 44(2)(c) permits the Court to orderthe second transferee to transfer that interest or pay a sum not exceeding the value ofthat interest.[74] Section 44(3) enables the court to make "such further order as it thinks fit" soas to give effect to any order under s 44(2).[75] Section 44(4) provides that in any case to which s 44(1) applies, relief shall bedenied "if the person from whom relief is sought received the property or interest ingood faith, and has so altered his or her position in reliance on having anindefeasible interest in the property" and where "in the opinion of the court, havingregard to all possible implications in respect of other persons, it is inequitable to grantrelief, or to grant relief in full".Section 44C of the Act[76] Section 44C applies to dispositions of relationship property to a trust.[77] Section 44C(1) states that this section applies if the court is satisfied:(a) that, since the marriage began, either or both spouses havedisposed of relationship property to a trust; and(b) that the disposition has the effect of defeating the claim or rights ofone of the spouses ; and(c) that the disposition is not one to which section 44 applies.[78] Under s 44C(2) the court may make one or more of three orders to compensatethe spouse whose claim or rights under the Act have been defeated by the dispositionof relationship property. For present purposes, we need refer to only two of thoseorders:(a) an order requiring one spouse to pay to the other spouse a sumof money, whether out of relationship property or separate property:(b) an order requiring one spouse to transfer to the other spouse anyproperty, whether the property is relationship property or separateproperty:[79] Section 44C(4) provides that the court may make one or more of the ordersunder s 44C(2) if it considers it just to do so, having regard to:(a) the value of the relationship property disposed of to the trust:(b) the value of the relationship property available for division:(c) the date or dates on which relationship property was disposed of tothe trust:(d) whether the trust gave consideration for the property, and if so, theamount of the consideration:(e) whether the spouses or either of them, is or has beena beneficiary of the trust:(f) any other relevant matter.[80] Before addressing the questions that engage s 44 of the Act, it is important toemphasise the following:(a) The questions of law that we are required to answer concerning ss 44and 44C are confined to the shares held by the Trust at the date theparties separated.(b) The evidence is that on 9 October 2000, Mr Dyer disposed his shareportfolio to the Trust. Those shares were valued at $46,960.16 andwere relationship property. There is no evidence concerning the valueof those shares at the date of the parties' separation or the hearing inthe Family Court. Those shares were probably mingled with thegeneral shares held by the Trust. It cannot be argued, however, thatMr Dyer disposed of those shares in order to defeat any claim or rightthat he or Ms Gardiner had to those shares. Thus, the 2000 sharedisposition is excluded from consideration under s 44.(c) There is no evidence that clearly explains how the balance of the sharesin the general share portfolio were acquired by the Trust. The partiesand the Courts below proceeded on the basis that the Trust acquiredthe balance of its general share portfolio by purchasing those sharesdirectly. Section 44 of the Act cannot apply to the balance ofthe general shares held by the Trust in the absence of evidence thatshows the Trust acquired those shares by way of dispositions fromMs Gardiner or somebody acting on her behalf.Section 44(1) of the Act[81] Two questions arise under s 44(1) of the Act:(a) Was there a disposition of property by or on behalf of Ms Gardiner tothe Trust when it acquired the AAC and/or CIP shares? If so, —(b) Was the disposition carried out to defeat Mr Dyer's interest in thatproperty?[82] There was a significant difference in reasoning between the Family Court andHigh Court concerning the acquisition of the AAC and CIP shares by the Trust:(a) The Family Court decided those shares were acquired first byMs Gardiner as part of her employment arrangements and thendisposed of by her to the Trust. The Family Court also decided thosedispositions occurred in order to defeat Mr Dyer's claims or rights tothose shares.(b) The High Court Judge concluded there was no disposition of thoseshares by Ms Gardiner to the Trust and that the acquisition of thoseshares by the Trust was not done in order to defeat Mr Dyer's interestin those shares.[83] The text of s 44(1) and the authorities decided under that section establish thata disposition may occur at the direction of someone exercising a right of nominationif the effect of the assignment is to divert property from the pool of assets beneficiallyowned by one or more of the parties to a marriage.38 In Re Polkinghorne Trust, Kiddv Kidd, Mr Kidd as the purchaser had the power to nominate a trust as the purchaserof a section of land.39 Tompkins J found that when the vendor later transferred theland to the trust, that must have been done at the direction of Mr Kidd. Therefore,there was a disposition of that land at the direction of Mr Kidd.38 Re Polkinghorne Trust, Kidd v Kidd (1988) 4 NZFLR 756 (HC) at 761; and Clayton v Clayton[2015] NZCA 30, [2015] 3 NZLR 293 at [133].39 At 761.[84] The High Court Judge decided that the 7,500 AAC shares acquired by the Trustin 2001 were not acquired by disposition from Ms Gardiner. He said that allMs Gardiner disposed of was a right of assignment for the Trust to acquire thoseparticular shares and that there was no evidence about the value of the right ofassignment. This approach is difficult to reconcile with the authorities we havereferred to at [83] and the text of s 44(1) which applies to any property that is disposedof "whether for value or not".[85] Ms Gardiner's employment arrangements gave her the right to assignthe 7,500 AAC shares during the course of the parties' marriage. The transfer of thoseshares to the Trust was a disposition of property at the direction of Ms Gardinerpursuant to her right to assign those shares. That disposition was intricately connectedto Ms Gardiner's employment arrangements. There was in substance no differencebetween Ms Gardiner acquiring those shares and transferring them to the Trust or theTrust acquiring them directly through the right of assignment from Ms Gardiner.Either way, the Trust acquired those shares as a consequence of Ms Gardiner'semployment arrangements.[86] The 3,258 AAC shares that the Trust acquired in 2009 involved Ms Gardinerreceiving those shares and then disposing them to the Trust through a declaration thatthe beneficial interest in those shares vested with the Trust. That declaration byMs Gardiner was a direction that the shares be disposed to the Trust for the purposesof s 44(1) of the Act.[87] The redistribution of the CIP shares in 2010 was also carried out as a result ofMs Gardiner's employment arrangements and, in substance, involved her disposing tothe Trust what would otherwise have been her personal interest in those shares.The 2010 share restructuring amounted therefore to a disposition of property, by CIPon behalf of Ms Gardiner, to the Trust.Was the disposition undertaken to defeat Mr Dyer's claim or interest in the shares?[88] The Family Court Judge highlighted cross-examination of Ms Gardiner inwhich she acknowledged that she arranged for the transfer of relationship property tothe Trust in order to protect that property from any possible claim by Mr Dyer.That cross-examination provided a factual platform for the Family Court Judge toconclude the AAC and CIP shares were disposed of to the Trust by, at the direction of,or on behalf of Ms Gardiner in order to defeat any claim or right Mr Dyer may havehad to those shares.[89] The High Court Judge took a different view. He focused uponthe Family Court Judge's conclusions that Ms Gardiner's gifting arrangements wereundertaken without any intention of defeating Mr Dyer's claim or right to relationshipproperty. From that finding the High Court Judge reasoned that as the Trust paid forthe AAC and CIP shares through Ms Gardiner's gifting arrangements, then thoseshares were not disposed of by Ms Gardiner in order to defeat Mr Dyer's claim orrights to the property.[90] The intention requirements of s 44(1) of the Act may be satisfied wherethe person responsible for the disposition is aware that the effect of the disposition isto defeat a claim or the rights of another person to the property that is the subject ofthe disposition.40[91] The High Court Judge erred in two ways when he concluded Ms Gardinerlacked the requisite intention to defeat Mr Dyer's claim or right to the AAC andCIP shares:(a) he focused upon the gifting mechanism, rather than Ms Gardiner'sintention at the time the shares in question were disposed to the Trust;and(b) he failed to adequately address the clear evidence from Ms Gardinerthat she arranged for the Trust to acquire relationship property in orderto defeat Mr Dyer's possible claim to that property.[92] Ms Gardiner's candid acknowledgement in the Family Court provided a soundbasis for the Family Court Judge to conclude that she intended to defeat Mr Dyer's40 Regal Castings Ltd v Lightbody [2008] NZSC 87, [2009] 2 NZLR 433; Ryan v Unkovich [2010]1 NZLR 434 (HC) at [33] and [41]–[42]; and Potter v Horsfall [2016] NZCA 514, [2016] NZFLR974.claim or rights to the AAC and CIP shares at the time those shares were disposed tothe Trust.[93] The High Court Judge's approach involved both a misunderstanding of s 44(1)of the Act and the factual findings that had been made. As a consequence,the High Court Judge erred when he decided s 44(1) of the Act did not apply tothe AAC and CIP shares held by the Trust.Section 44(2) of the Act[94] Before relief can be granted under s 44(2), the Court must be satisfiedthe recipient acquired the property otherwise than in good faith and for either valuableor adequate consideration.[95] The Family Court held that aside from the $45,000 paid to Ms Gardinerthrough gifting in 2001, the Trust did not provide any consideration for the AAC andCIP shares. The High Court Judge examined the same evidence and concludedthe Trust paid for all of the AAC and CIP shares either through Ms Gardiner's giftingarrangements, by repaying the $60,000 loan taken out in 2001 or by surrendering itsshare rights in 2010.[96] We think there is force in the High Court Judge's analysis on this point.The Trust paid market price for all the shares either through loans from Ms Gardinerthat she forgave under the gifting arrangements or by the Trust taking responsibilityfor repaying money that was loaned to it to buy the shares. Under either scenario,the Trust paid valuable or adequate consideration for the AAC and CIP shares.[97] Before us, Mr Dyer's counsel submitted that the good faith and considerationrequirements of s 44(2) of the Act are conjunctive. Ms Gardiner and the Trustcontended the opposite.[98] This issue was recently considered by Thomas J in Kwok v Rainey, in whichshe held that "both good faith and valuable consideration are required beforethe Court's discretion to make an order under s 44(2)(a) is ousted".41[99] We are satisfied that the good faith and consideration requirements of s 44(2)of the Act are conjunctive. Thus, if the requirements of s 44(1) are satisfied, the Courtmay make an order under s 44(2) unless the recipient acquired the property in goodfaith and provided valuable or adequate consideration. The alternative reading leadsto untenable consequences. If the requirements in question were disjunctive, a trustthat acquired property for valuable or adequate consideration but did so in bad faithwould be insulated from further scrutiny. This outcome would significantlyundermine s 44(1), which applies where property is disposed of "whether for valueor not".[100] Section 44(2) is intended to protect purchasers who not only provide value forassets, but who also acquire such assets in good faith. This approach is reinforced bys 44(4) of the Act, which provides that relief should be denied, wholly or in part, unders 44(1) if the person from whom relief is sought received the property in good faithand has altered his or her position in reliance on having an indefeasible interest inthe property. Under s 44(4) good faith alone is not enough to deny a remedy unders 44(1). There must be good faith and an alteration of the recipient's position.[101] Thus, while we think the High Court Judge was correct when he concludedthat the Trust provided valuable or adequate consideration for the AAC and CIP shares,it is also necessary to assess whether or not the Trust acquired the shares in good faith.[102] The Family Court Judge concluded that Ms Gardiner and Mr Clark lackedthe requisite good faith because they intended to defeat Mr Dyer's claim or right tothe shares and did so without telling him what they were doing. We do not find thisaspect of the Family Court judgment very compelling because, asthe High Court Judge correctly observed, once he became a trustee, Mr Dyer couldaccess the Trust's annual accounts and see for himself that it was acquiring shares thatmight otherwise have been relationship property.41 Kwok v Rainey [2020] NZHC 923 at [113].[103] We consider, however, that where a party to a marriage deliberately divertsproperty to a trust with the intention of defeating the claim or rights of their spouse tothat property, and where the property is received by a trust in circumstances wherethe trustees know that is the intention of the arrangements, then the trust lacks therequisite good faith when it receives the property. In the present case, Ms Gardinerand Mr Clark, acting in their capacity as trustees, acquired the AAC and CIP shares soas to defeat any claim Mr Dyer had in those shares. They did so with the intention ofensuring the Trust would continue to grow its portfolio of assets so as to provideongoing financial support for Kevin. The trustees were therefore faithfully adheringto the primary objectives of the Trust. However, they also knew that the arrangementswould ensure Mr Dyer had no recourse to the AAC and CIP shares. That knowledgeand intention is sufficient to satisfy the "otherwise than in good faith" requirements ofs 44(2) of the Act.What, if any, orders could be made under s 44(2)?[104] It is convenient to first examine what the Family Court determined and thenconsider whether any orders could be made under s 44(2).[105] At [294] of its judgment, the Family Court purported to make orders unders 44(2)(c) of the Act. That, however, was an inadvertent error. Section 44(2)(c) wasnot engaged because the Trust received the dispositions directly, rather than asa second transferee. No orders could be made under 44(2)(c).[106] There may have been scope to make an order under s 44(2)(b) had theFamily Court been correct in its assessment that the Trust did not pay for the sharesacquired by the Trust, save for the $45,000 applied towards the AAC share acquisitionin 2001. As we have explained however, the High Court was correct when itdetermined that the Trust paid market price for all of the AAC and CIP shares that itacquired. Thus, s 44(2)(b) is of no assistance to Mr Dyer as it is limited by therequirement that any compensation paid under that subsection not exceed "thedifference between the value of the consideration [paid] and the value of the property".No orders could be made under s 44(2)(b).[107] That leaves s 44(2)(a) of the Act as a possible source of remedy for Mr Dyer.There are, however, three factors that lead us to conclude the Family Court would haveerred had it made orders in Mr Dyer's favour under s 44(2)(a):(a) Aside from the $45,000 applied towards the purchase of the AACshares in 2001, none of the money used by the Trust to acquire the AACand CIP shares was ever relationship property. Thus, although we aresatisfied the trustees lacked the requisite good faith when they receivedthe AAC and CIP shares, the fact those shares were substantially paidfor by the Trust using its resources and not through the application ofrelationship property funds weighs heavily against discretionary reliefbeing granted to Mr Dyer under s 44(2)(a).(b) Although the evidence on this point is sparse, we understand the CIPshares are in a closely held company and are therefore unlikely to beable to be freely traded or assigned to persons with no connection toCIP.(c) As we shall now explain, a more appropriate form of relief is availableto Mr Dyer under s 44C of the Act.Section 44C of the Act[108] Section 44C applies to the dispositions of relationship property to a trust incircumstances where the disposition has the effect of defeating the claim or rights ofone of the parties to a relationship. Thus, s 44C is narrower than s 44 in that it appliesonly to the disposition of relationship property. Unlike s 44 however, an applicant fora remedy under s 44C need not establish that the disposition of property in issue wasmade with the intention of defeating the claim or rights of a party to the relationship.Under s 44C(1)(c) the Court must also be satisfied that "the disposition is not one towhich s 44 applies". It is convenient to first deal with this last requirement of s 44C(1).[109] We think a pragmatic approach is required when determining if a disposition"is not one to which s 44 applies" because the purpose of this requirement is to preventclaims being granted under s 44C in circumstances where relief has already beengranted under s 44. However, where the s 44(1) requirements have been made out,but the Court does not exercise its discretion to grant relief under s 44(2), the Court isnot precluded from granting relief under s 44C. Furthermore, while the granting ofrelief under s 44 excludes any remedy under s 44C, this does not mean that the reasonswhy relief is excluded under s 44 preclude a remedy being granted under s 44C.42[110] In the present case Mr Dyer's application for a remedy under s 44C must beconfined to:(a) the shares he disposed to the Trust in 2000; and(b) the AAC/CIP shares that Ms Gardiner disposed or arranged to bedisposed to the Trust.The balance of the shares in the Trust's general share portfolio, other than thoseMr Dyer disposed to the Trust in 2000 are excluded from consideration under s 44Cbecause there is no evidence those shares were acquired by the Trust by way ofdispositions from Ms Gardiner.[111] Two preliminary questions that arise under s 44C(1) of the Act are:(a) Whether the share dispositions referred to in [110(a) and (b)] concernrelationship property and if so,(b) Whether the dispositions had the effect of defeating Mr Dyer's claimor rights to those shares.[112] The shares Mr Dyer disposed to the Trust in 2000 were relationship propertybefore those shares were disposed to the Trust because they:(a) were purchased from income Mr Dyer earned during the course of themarriage; and42 Simon v Wright [2013] NZHC 1809 at [35]–[36]. Leave was granted to appeal this point in Simonv Wright [2014] NZCA 199. The appeal was, however, abandoned in 2015.(b) were owned by him prior to him being disposed to the Trust.[113] The AAC/CIP shares were also relationship property before they were disposedto the Trust because, as we have explained at [85]–[87], they were acquired throughMs Gardiner's employment arrangements during the course of the parties' marriage.The AAC/CIP shares were part of her employment arrangements and if they had notbeen disposed to the Trust they would have formed part of the pool of relationshipproperty available for distribution at the end of the parties' marriage.[114] The second criterion in s 44C(1) is beyond dispute. The effect of thedispositions we have summarised at [110(a) and b)] was to defeat Mr Dyer's claim orrights to those shares.[115] We shall now discuss whether or not Mr Dyer should be provided witha remedy under s 44C(2) in relation to either or both the share dispositions by firstdealing with the shares he disposed to the Trust in 2000.Shares disposed in 2000[116] It is unlikely the shares Mr Dyer disposed to the Trust in 2000 can now bedisentangled from the Trust's general share portfolio and be valued as at September2016. This difficulty should not, however, constitute an impenetrable barrier to anyrelief to which Mr Dyer is otherwise entitled under s 44C.[117] In evaluating the factors listed in s 44C(4) of the Act, we reach the followingconclusions:(a) The value of the shares Mr Dyer disposed to the Trust in 2000 was, atthe time, significant. By comparison, Ms Gardiner had disposedapproximately $30,000 worth of shares to the Trust. This is a factorthat weighs in favour of relief being granted to Mr Dyer under s 44C.(b) There is not a significant amount of other relationship property that isavailable for division. This is a factor that weighs in favour of reliefbeing granted to Mr Dyer under s 44C.(c) Mr Dyer disposed of his shares to the Trust about 12 years before theparties separated. This is a neutral consideration.(d) The shares were paid for from money that was relationship propertyand were relationship property before they were disposed to the Trust.The shares were acquired by the Trust by Mr Dyer forgiving the debtthe Trust incurred when it received the shares. This is a factor thatweighs in favour of relief being granted to Mr Dyer under s 44C.(e) Mr Dyer was only ever a discretionary beneficiary of the Trust. He didnot receive any distributions from the Trust. Mr Dyer did, however,receive significant direct and indirect benefits from the Trust.We examine this factor at [118].(f) No other relevant matters have been brought to our attention.[118] The direct benefits which Mr Dyer alone obtained from the Trust were:(a) recourse to a loan to pay his tax liability;(b) payment of his litigation debt; and(c) drawings which left his current account balance in deficit in the sum of$29,426.In addition, Mr Dyer shared with Ms Gardiner a number of indirect benefits fromaccessing borrowings through the Trust which were used to fund their comfortablelifestyle, including a procession of expensive vehicles. These considerations weighagainst compensating Mr Dyer under s 44C.[119] We are satisfied, however, the factors we have referred to at [117(a), (b) and(d)] outweigh the benefits Mr Dyer received from the Trust and lead us to concludethat it would be just if we awarded Mr Dyer a remedy under s 44C in relation to theshares he disposed to the Trust in 2000. In our assessment, the fact those shares wererelationship property and were paid for from relationship property funds, warrantsa remedy being granted to Mr Dyer under s 44C of the Act in relation to those shares.In view of the period of time the Trust has held those shares, and the difficulties thatare likely to arise in disentangling them from the Trust's general share portfolio, wethink the most appropriate remedy under s 44C(2) is to compensate Mr Dyer for thoseshares through the payment of a sum of money under s 44C(2)(a), rather than orderthat some of those shares be transferred to him.Calculating compensation[120] The calculation of the compensation Mr Dyer is entitled to receive unders 44C(2) for the shares he disposed to the Trust in 2000 needs to reflect the factMr Dyer's claim to those shares was always going to be limited to 50 per cent of thevalue of those shares. This reflects the fact that had those shares remained in the poolof relationship property available for distribution at the date of separation his claimwould have been limited to half of those shares.[121] Further challenges arise in determining at what date the 2000 share dispositionshould be valued.[122] Section 2G of the Act provides that the value of property to which the Actrelates is to be determined as at the date of the hearing by the court of first instance.This reflects the well-entrenched policy that both parties should benefit inpost-settlement changes in the value of their property.43 Courts do, however, havea discretion under s 2G(2) to determine the value of relationship property as atanother date.[123] The Family Court decided to exercise its discretion to determine the value ofcompensation that it said Mr Dyer was to be paid under s 44(2) by reference to thevalue of all the shares held by the Trust as at the date of the parties' separation. Tworeasons underpinned that approach:43 Jorna v Jorna [1982] 1 NZLR 507 (CA).(a) There was no evidence about the value of the shares held by the Trustas at the date of the hearing.(b) Mr Dyer's derelict mismanagement of his finances during the parties'marriage weighed heavily against him receiving the benefit ofthe Court's discretion.[124] The Family Court Judge exercised her discretion in relation to the whole of theTrust's share portfolio. We are, at this juncture, only focusing upon the shares Mr Dyerdisposed to the Trust in 2000. Nevertheless, we have considerable sympathy for theFamily Court Judge's reluctance to give Mr Dyer the benefit of her discretion whendetermining the shares should be valued as at the date the parties separated. The Actdoes, however, emphasise the need to recognise the equal contribution of both partiesto a relationship and that all contributions to a relationship should be treated as equal.It is also important to recognise that under s 18A, except in limited circumstancesreferred to in s 18A(2) and (3) "a court may not take any misconduct of a spouse into account in proceedings under this Act, whether to diminish or detract from thepositive contribution of that spouse or otherwise". The words "or otherwise" ins 18A(1) suggests that, absent the conditions specified in s 18A(2) and (3), Mr Dyer'smismanagement of his finances during the marriage should not be used to affect thevalue of relationship property to which he is entitled.44[125] Bearing in mind the principles that underpin the Act and the limited relevanceof misconduct in relationship property issues, we are satisfied that, notwithstandingMr Dyer's cavalier attitude towards his finances, a conventional application ofs 2G of the Act is required when assessing the compensation to which he is entitledunder s 44C. Thus, in our assessment, the compensation Mr Dyer should receive mustrelate to the value of the 2000 share disposition as at the date of the hearing in theFamily Court.[126] We appreciate it may now be very difficult to disentangle the shares Mr Dyerdisposed to the Trust in 2000 from the general shares held by the Trust. To addressthis concern, we make the following orders:44 Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507 at [61], [364] and [402].(a) The parties are to ascertain if it is possible to determine, as at the dateof the hearing in the Family Court the value of the shares that Mr Dyerdisposed to the Trust in 2000. If so, Mr Dyer is entitled tocompensation from Ms Gardiner of a sum that represents half of thevalue of those shares as at the date of the hearing in the Family Court.(b) If it is not possible to value those shares as at the date of the hearing inthe Family Court, then Mr Dyer should receive compensation thatreflects half of the value of the shares he disposed to the Trust in 2000($23,480) together with interest from October 2000 to September 2016at the rate prescribed by the Judicature Act 1908. We have chosen thatrate to provide certainty to the parties and because the proceedingswere commenced prior to the commencement of the interest onMoney Claims Act 2016.The AAC/CIP shares[127] We make the following three preliminary points about the AAC/CIP shares:(a) Save for the $45,000 that was applied towards the acquisition of the2001 AAC shares, the AAC and CIP shares were purchased by the Trustfrom its own resources.(b) Had the AAC/CIP shares been retained as relationship property and notdisposed to the Trust, then those shares would have been purchasedfrom relationship property funds. In those circumstances, we wouldhave treated the AAC/CIP shares in the same way as the shares Mr Dyerdisposed to the Trust in 2000.(c) As the AAC/CIP shares were not retained as relationship property andwere disposed to the Trust, which paid for most of those shares fromits own resources, Mr Dyer's true loss was being deprived of an interestin the increase in value of those shares. Save for the $45,000 which weshall discuss separately at [130], Mr Dyer has not suffered any loss withrespect to the purchase price of the shares. Expressed another way,because Mr Dyer and Ms Gardiner did not pay for the AAC/CIP sharesthrough relationship property (save for the $45,000 which we shalladdress separately), any compensation to which Mr Dyer might beentitled should be calculated differently from the compensation he isentitled to in relation to the 2000 share disposition.[128] Applying the criteria in s 44C(4) of the Act, we reach the followingconclusions:(a) The value of the shares acquired by the Trust was very significant. Thisweighs in favour of compensating Mr Dyer under s 44C.(b) There is not much other relationship property that is available fordivision. This is also a factor that weighs in favour of compensatingMr Dyer under s 44C.(c) The shares were acquired by the Trust in three stages, namely in 2001,2009 and 2010. This is a neutral factor.(d) Most of the shares were acquired by the Trust through the applicationof its own resources. This factor weighs against compensating Mr Dyerunder s 44C.(e) Mr Dyer was only ever a discretionary beneficiary of the Trust. As wehave previously recorded, he did not receive any distributions from theTrust but he did receive significant direct and indirect benefits from theTrust. As we have previously explained, this consideration weighsagainst compensating Mr Dyer under s 44C.(f) Ms Gardiner's intentions when the Trust acquired the AAC and CIPshares was to defeat any right or claim Mr Dyer had to those shares.We refer to this factor in further detail at [129].[129] Although s 44C does not require proof of an intention by one party to defeatthe interests of the other party to relationship property we consider it significantMs Gardiner put in place the arrangements that led to the Trust acquiring the AAC/CIPshares in order to defeat Mr Dyer's claim or right to those shares. We acceptMs Gardiner put in place the arrangements that we are focusing upon in order toprotect Kevin's interests and that she was not motivated by a desire to enhance herown financial position. Nevertheless, the effect of her actions was to deliberatelydeprive Mr Dyer of an interest he would otherwise have had in the AAC/CIP sharesand Ms Gardiner was fully aware her actions would have this effect.[130] As foreshadowed, different conceptual considerations apply to that part of the2001 AAC shares that were paid for using the $45,000 that Ms Gardiner received asa "sign on bonus" from her new employer. While close to 40 per cent of the AACshares that were acquired in 2001 might be able to be treated in a similar way to theshares Mr Dyer disposed to the Trust in 2000, we are not willing to do so because:(a) Those shares were subject to the capitalisation and share restructuringarrangements carried out in 2010.(b) Mr Dyer has received considerable direct and indirect benefits from theTrust which, we believe, outweigh any right or claim that he may havehad to that portion of the AAC shares that were paid for usingMs Gardiner's sign on bonus from her new employer.[131] The balance of our analysis under s 44C will therefore focus on what, if any,relief Mr Dyer should receive under s 44C(2) in relation to the AAC/CIP sharesacquired by the Trust. For the reasons we have previously explained, any remedyshould be limited to compensation through payment of a sum of money rather than anorder allocating some of those shares to Mr Dyer.[132] As we have previously explained, Mr Dyer's interest in the AAC/CIP shares islimited to the increase in their value and the dividends derived from those shares afterthe parties separated. His interest is also limited to no more than 50 per cent of theincrease in value of those shares, and 50 per cent of the dividends paid in relation tothose shares.[133] After weighing the factors we have set out at [128]–[129], we are satisfiedMr Dyer should be compensated for his lost interest in the AAC/CIP shares.In particular, Ms Gardiner's candid acknowledgement that the arrangements inquestion were put in place to defeat Mr Dyer's interest is a compelling factor thatfavours granting him compensation under s 44C.[134] We appreciate that there will again be practical challenges in valuing thecompensation which Mr Dyer is entitled to recover in relation to the AAC/CIP shares.Nevertheless, Mr Dyer is entitled to:(a) Compensation that reflects half of the increase in value of the AAC/CIPshares as at the date of the hearing in the Family Court.(b) Receive from Ms Gardiner a payment that reflects half of the dividendspaid on those shares subsequent to the parties' separation.[135] Measuring the increase in value of the AAC/CIP shares between 2001 and 2010should be a comparatively easy exercise as a number of those shares were capitalisedduring the share restructure undertaken by CIP in 2010. It may be more difficult tocalculate the increase in the CIP shares from 2010 to September 2016. If that provesto be the case then the formula we have set out at [126(b)] for calculating the increasein value of the 2000 share disposition may again be employed by the parties.Section 11B of the Act[136] The parties do agree that their current account with the Trust was the onlyrelationship property available to compensate Mr Dyer for the absence of him havingan interest in the family home.[137] The Family Court Judge interpreted s 11B(2) of the Act as meaning she couldaward all of the parties' current account with the Trust to Mr Dyer in order tocompensate him for the fact he has no interest in the parties' family home. On theother hand, the High Court Judge interpreted s 11B(2) of the Act as meaning thatMr Dyer could receive no more than 50 per cent of the parties' combined currentaccount with the Trust.[138] Section 11B(2) provides that the court: must award each spouse an equal share in such part of the relationshipproperty as it thinks just in order to compensate for the absence of an interestin the family home.[139] The words "such part of the relationship property as it thinks fit" confersa discretion on the court to determine what, if any, relationship property may be usedto compensate a spouse for not having an interest in a family home. The sectionpresupposes the existence of a pool of relationship property that would not otherwisebe available for equal division. It is therefore a provision that will rarely be engaged.Once a court determines that relationship property can be used for the purpose ofcompensating a party for the absence of an interest in a family home, then the courtmust award an equal share of that property. Thus, in the circumstances of this case,the correct application of s 11B(2) of the Act requires each party to receive an equalshare of the parties' combined current account with the Trust.[140] The parties disagree, however, about the value of the current account inthe Trust. Of particular concern was the way in which the Courts below treatedthe litigation debt incurred by Mr Dyer as being his personal debt and nota relationship debt.[141] In the Courts below, it was determined that the $60,000 debt for legal feesMr Dyer incurred when he was sued in relation to a real estate deal was paid bythe Trust. It was also determined that debt was personal to Mr Dyer and needed to beaccounted for when calculating the value of the parties' current account with the Trust.[142] In this Court, an effort was made to relitigate the factual findings in the Courtsbelow. Mr Fowler QC, senior counsel for Mr Dyer, submitted that his client was infact reimbursed for this particular debt through adjustments to the commissions hereceived after the litigation was resolved in his favour and that through this processthe debt was repaid to the parties.[143] We are not willing to engage in trying to resolve this factual dispute.The questions we are required to answer are questions of law that have been posed onthe basis of the factual findings made in the Courts below. Thus, we shall focus onwhether or not the Courts below correctly determined the $60,000 litigation debt wasMr Dyer's personal debt.[144] The submission from Mr Dyer on this point was advanced as a rhetoricalquestion:Why is business income earned by the husband relationship property, yet thedebt of the costs of defending that business is not a relationship debt?[145] It was also submitted on behalf of Mr Dyer, that this Court's judgment inBell-Booth v Bell-Booth,45 has been superseded by amendments to the Act made in2001. In Bell-Booth, it was held that under s 20(7)(b) of the then Matrimonial PropertyAct 1976, in order for a business debt to qualify as a relationship debt, the businesshad to be a common enterprise of the parties to the marriage.[146] This aspect of Mr Dyer's appeal is misconceived because relationship debt iscurrently defined in s 20(1) of the Act to mean a debt that has been incurred:(a) by the spouses or partners jointly; or(b) in the course of a common enterprise carried on by the spouses orpartners, whether alone or together with another person; or(c) for the purpose of acquiring, improving, or maintaining relationshipproperty; or(d) for the benefit of both spouses or partners in the course of managingthe affairs of the household; or(e) for the purpose of bringing up any child of the marriage, civil union,or de facto relationship.[147] The litigation debt incurred by Mr Dyer in relation to his business as a realestate agent was not incurred by the parties jointly or in pursuit of a common enterprisecarried on between Mr Dyer and Ms Gardiner. Nor was the debt incurred forthe purpose of acquiring, improving, or maintaining relationship property. It was notsuggested that the other criteria in the definition of relationship debt were relevant.45 Bell-Booth v Bell-Booth [1999] 2 NZLR 7 (CA).[148] The Courts below correctly ruled that the litigation debt incurred by Mr Dyerwas not a relationship debt.Section 182 of the Family Proceedings Act[149] The relevant portions of s 182(1) of the Family Proceedings Act provide: [a] Family Court may inquire into any ante-nuptial or post-nuptialsettlement made on the parties, and may make such orders with reference tothe application of the whole or any part of any property settled for thebenefit of the parties to the marriage , as the court thinks fit.[150] Under s 182(3) of the Family Proceedings Act, when exercising its discretionunder s 182: the court may take into account the circumstances of the parties and anychanges in those circumstances since the date of the settlement and anyother matters which the court considers relevant.[151] This Court said in Ward v Ward, that there should be a generous approach tothe interpretation of the term "settlement" in s 182.46 We also said:47 in order to come within the term "settlement" any arrangement must beone which, at the date of the hearing, makes some form of continuingprovision for either or both of the parties to a marriage in their capacity asspouses [152] In Clayton v Clayton, the Supreme Court endorsed this Court's broad approachtowards identifying a settlement for the purposes of s 182, adding the requirement thatthe settlement be for both or either of the parties "in their capacity as spouses" means"only that there must be a connection or proximity between the settlement andthe marriage".48 A trust that was settled before the marriage, but which provides thata future spouse may be a beneficiary, is not on its own enough for it to bean ante-nuptial settlement.49 This Court in Kidd v van den Brink left openthe possibility where a trust has been settled before the marriage and a future spousenamed as a possible beneficiary (but did not exist at the time the trust was settled), that46 Ward v Ward [2009] NZCA 139, [2009] 3 NZLR 336 at [22].47 At [27].48 Clayton v Clayton [2016] NZSC 30, [2016] 1 NZLR 590 at [34].49 Kidd v van den Brink [2010] NZCA 169 at [8].each disposition of property to such a trust after the marriage might constitutea post-nuptial settlement.50[153] Once it is established that a nuptial settlement has taken place, the court mayexercise its discretion "to remedy the consequences of the failure of the premise ofa continuing marriage".51 This involves:52 a general comparison between the position under the settlement had themarriage continued and the position that pertains after the dissolution. It isforward looking, comparing the position under the settlement assuminga continuing marriage against the current position under a dissolved marriage.[154] The Supreme Court explained the analytical approach that is required byreference to the following diagram:53In the diagram A is the time of settlement, B is the position of the spouse underthe settlement with the marriage dissolved and C would have been the positionunder the settlement assuming a continued marriage. The comparison is notbetween A and B but, rather, between B and C.[155] A court may take into account factors such as:54(a) the manner in which the trustees would have exercised their discretionhad the marriage continued;(b) the source and character of the trust assets;(c) the length of the marriage; and50 At [14]–[16].51 Clayton v Clayton, above n 48, at [53].52 At [53]. (Footnotes omitted).53 At [54].54 At [57]–[59].(d) the suitability of the trust structure in light of the changedcircumstances.[156] The Supreme Court then noted that:[60] Ultimately it is the task of the judge faced with an application unders 182 to exercise the discretion in accordance with the terms of s 182 and inlight of its purpose, taking into account all relevant circumstances in theparticular case. [157] We shall examine the issues raised under s 182 of the Family Proceedings Actby first evaluating the pre-marriage transactions. We shall then analyse thepost-marriage transactions that were the focus of Mr Dyer's appeal.Pre-marriage transactions[158] Before the parties met, the Trust received the Karaka Bay cottage, shares worthapproximately $30,000 and was named as a beneficiary of Ms Gardiner's lifeinsurance policy. In addition, when it was settled, the Trust deed referred to any futurehusband of Ms Gardiner becoming a discretionary beneficiary.[159] The Courts below found that at the time he married Ms Gardiner, Mr Dyerknew Kevin was the primary beneficiary of the Trust and that Mr Dyer could not havehad any realistic expectation of receiving an interest in the Trust's assets. This wasreinforced to Mr Dyer early in the parties' marriage when he unsuccessfully attemptedto have Ms Gardiner amend the terms of the Trust deed to make Mr Dyer a beneficiaryof half the Trust's assets with effect from the fifth anniversary of the parties' marriage.Thus, the pre-marriage transactions lack the necessary connection or proximity tothe parties' marriage and, the Courts below correctly concluded they were notante-nuptial settlements for the purposes of s 182.Post-marriage transactions[160] The focus of Mr Dyer's appeal in relation to s 182 of theFamily Proceedings Act was upon the post-marriage transactions and in particular:(a) the settlement of the Ventnor Street property on the Trust on29 June 2001;(b) the gifting arrangements by Ms Gardiner and Mr Dyer, which enabledthe Trust to repay a part of the mortgage on the Ventnor Street propertyduring the course of the parties' marriage; and(c) the dispositions by Ms Gardiner of the AAC and CIP shares tothe Trust.[161] Mr Dyer contended that Ms Gardiner also disposed the general share portfolioto the Trust and that those transactions that resulted in the Trust acquiring its generalshare portfolio constituted post-nuptial settlements.[162] The purchase of the Ventnor Street property by the Trust involvedthe settlement of the parties' family home after their marriage. That transaction hasall of the characteristics of a post-nuptial settlement for the purposes of s 182 ofthe Family Proceedings Act.[163] The High Court Judge concluded that the gifting arrangements we havereferred to at [160(b)] and other capital advances made by the parties to the Trust werenot settlements but were to be treated as the "quid pro quo" of the arrangement thatexempted the parties from paying rent for living in the Ventnor Street property.55We are satisfied this aspect of the High Court Judge's analysis was wrong for thefollowing two reasons:(a) It involved him adopting a very restrictive approach when determiningwhat transactions were settlements for the purposes of s 182.(b) The resolution of the trustees that enabled the parties to live rent-freein the Ventnor Street property specified the basis on which they wereto do so. Ms Gardiner and Mr Dyer were required to pay forthe maintenance and other costs associated with the Ventnor Street55 High Court judgment, above n 2, at [48].property. Also, any contributions the parties made towards repayingthe mortgage were to be treated as capital advances by the parties intheir current account with the Trust. In these circumstances it was notappropriate for the High Court Judge to recast the arrangements toavoid concluding that the transactions we have referred to in [160(b)]were post-marriage settlements.[164] We are also satisfied that Ms Gardiner's disposition of the AAC/CIP shares tothe Trust were settlements for the purposes of s 182 of the Family Proceedings Act.Similarly, Mr Dyer's transfer of his shares to the Trust in 2000 was a settlement forthe purposes of s 182.[165] We do not accept, however, that the balance of the Trust's general shareportfolio as at the date of the parties' separation was acquired by way of settlements.This is because there is no evidence of the specific settlements of those shares by wayof transfers to the Trust by Ms Gardiner or anyone acting on her behalf. We understandthat in all likelihood the Trust's general share portfolio (apart from the sharescontributed by Mr Dyer in 2000) were acquired by the Trust using its resources topurchase shares on its own behalf.[166] We are therefore satisfied that the transactions we have summarised at[160] were settlements for the purposes of s 182 of the Family Proceedings Act.We reach this conclusion after taking a broad approach to determining what constitutesa settlement. We are also satisfied that the settlements were nuptial settlements as thetransactions in question involved the Trust acquiring assets that would have formedpart of the parties' pool of relationship property were it not for the Trust and themechanisms used to enable the Trust to acquire those assets. There is the necessaryconnection or proximity between those transactions and the parties' marriage.[167] Having concluded that the Courts below erred when they failed to recognisethat all of the post-marriage transactions we have referred to at [160] were settlementsfor the purposes of s 182 of the Family Proceedings Act, we shall now assess whetherthe Courts below should have exercised their discretion in Mr Dyer's favour byproviding him with relief under s 182.[168] In urging us to conclude that Mr Dyer should receive an interest in the propertythat was the subject of the post-marriage settlements, Mr Fowler emphasised a numberof factors, including that:(a) Mr Dyer became a discretionary beneficiary of the Trust when hemarried Ms Gardiner and became a trustee in May 2001.(b) The parties were married for 12 and a half years.(c) During the course of the marriage Mr Dyer and Ms Gardiner advancedmoney to the Trust.(d) During the course of the marriage Mr Dyer contributed to the payingof rates and other outgoings on the Ventnor Street property.(e) Ms Gardiner's memorandum of wishes dated 29 January 2004demonstrated that she and Mr Dyer anticipated he would be"looked after" by the Trust in the event that Ms Gardiner passed away.[169] We make three preliminary points:(a) We do not accept any significance can attach to Ms Gardiner'sexpressions of her wishes in 2004. Those wishes were conveyed to thetrustees in the event that she died. We think that scenario is vastlydifferent from what her wishes would have been in the event the partiesseparated before she died.(b) Mr Dyer continues to assert that his financial contributions to the Trustand the marriage were greater than those determined in the Courtsbelow. Our task, however, is to answer the questions of law that arebased on the facts determined in the Courts below.(c) Had the marriage not ended, Mr Dyer would have continued to live inthe Ventnor Street home or any other property the Trust acquired duringthe course of the parties' marriage. Living in a family home is,however, not the same as having an interest in that home or a genuineexpectation of an interest in the property. It is also important not toconflate the functions of s 11B of the Act with the Court's role unders 182 of the Family Proceedings Act.[170] We have compared Mr Dyer's position after separation with the position hewould likely have been in had the marriage continued. We can see no material changebetween those two positions.[171] Had the parties remained together:(a) It is highly unlikely that Ms Gardiner and Mr Clark would haveexercised their discretion as trustees to confer Trust property uponMr Dyer. This is because the primary beneficiary of the Trust was, andalways has been, Kevin. A key reason for establishing the Trust was toensure that resources existed to ensure provision for his long-term careand welfare.(b) Furthermore, the trustees had not exercised their discretion to conferTrust property in favour of Mr Dyer during the parties' 12 and a halfyear marriage. It is therefore highly unlikely the trustees would do sohad the parties remained married post June 2012.(c) The duration of the marriage and Mr Dyer's role as a trustee areunlikely to have caused Ms Gardiner and Mr Clark to adopt a coursethat is different from that which we have summarised in (a) and (b).[172] We have tested this conclusion by asking, if the parties had not separated howwould Ms Gardiner and Mr Clark have responded to a request from Mr Dyer fora share of the Trust's assets after 2012. We have no doubt that, consistent with theviews they expressed in 2000, the trustees would have given Mr Dyer short shrift.In 2000 the trustees informed Mr Dyer that he was not a primary beneficiary and hadno guaranteed interest in the Trust's assets. We can see no evidence to suggest thatthe trustees' attitudes would have changed after 2012. Thus, the fact the parties'marriage ended in 2012 did not put Mr Dyer in a worse position in relation to theTrust's assets.[173] We accordingly conclude that, albeit for different reasons, the Courts belowcorrectly concluded Mr Dyer was not entitled to relief under s 182 of theFamily Proceedings Act.[174] We answer the questions posed by the High Court Judge in the following way:(a) The dispositions of relationship property to the Trust that we haveidentified in [160] were nuptial settlements for the purposes of s 182 ofthe Family Proceedings Act.(b) The High Court Judge erred in concluding that the gifting arrangementsand capital advances to the trust that we have summarised in [160(b)]were quid pro quo occupation costs rather than settlements.(c) The disposition of Ms Gardiner's employment share entitlements andthe shares gifted by Mr Dyer to the Trust were nuptial settlements forthe purposes of s 182 of the Family Proceedings Act. However,the general share portfolio in the Trust was not a nuptial settlement forthe purposes of s 182.(d) Ms Gardiner's memoranda of wishes were not relevant to the Court'sconsideration of the parties' intentions when assets were settled uponthe Trust during the marriage.(e) The correct approach to assessing the parties' benefits followingdissolution of the marriage is as set out in [153] to [156].[175] We answer the questions in respect of which this Court granted leave inthe following way:(a) The High Court correctly held Mr Dyer was not entitled to orders unders 44(2) of the Act in respect of the CIP shares including their dividends.Mr Dyer is entitled to be compensated under s 44C, however, for halfof the increase in value of the AAC/CIP shares as at the date of thehearing in the Family Court and to half of the dividends paid uponthose shares between the date of separation and the date of the hearingin the Family Court. Mr Dyer is also entitled to be compensated forhalf of the value of the shares he disposed to the Trust in 2000.(b) The 2000 share disposition should be valued at the date of the hearingin the Family Court or by using the formula we have set out at [126(b)].The compensation for the increase in value of the AAC/CIP sharesshould be based on the value of those shares as at the date of the FamilyCourt hearing.(c) The $60,000 litigation costs incurred by Mr Dyer were a personal debt.(d) The High Court Judge correctly interpreted the meaning of s 11B of theAct when he held that the only remedy available under the section wasto award equal shares. Mr Dyer is entitled to receive half of the parties'current account in the Trust as compensation for the absence of aninterest in the family home.[176] For completeness, we record Mr Dyer is entitled to receive from Ms Gardiner:(a) A payment that reflects 50 per cent of the 2000 share disposition valuedas at the date of the hearing in the Family Court. Alternatively,compensation for those shares is to be calculated in accordance with[126(b)].(b) A payment that reflects 50 per cent of the increase in value of theAAC/CIP shares from 2001 to September 2016 and 50 per cent of thedividends on those shares paid since the date of separation.(c) A payment from the Trust that reflects 50 per cent of the parties' currentaccount in the Trust. The Family Court determined the parties' currentaccount was worth $116,000. The High Court believed that there weresome unresolved issues relating to the value of the parties' currentaccount and remitted those issues back to the Family Court.56 We doubtthere is any merit in following that course of action and urge the partiesto accept Mr Dyer is entitled to receive 50 per cent of $116,000.(d) The costs order made in the High Court will need to be adjusted in lightof our decision. If the parties are unable to resolve the issue of costs inthe High Court they will need to return to that Court.[177] The following chart summarises the judgments of the Courts below concerningthe AAC/CIP shares and the effect of our judgment in relation to those shares.The chart is designed to assist in understanding this aspect of the case:56 High Court judgment, above n 2, at [379]–[381].AAC/CIP shares2001: Ms Gardiner nominated the Trust as the purchaser of 7,500 AAC shares. The Trust borrowed $45,000 fromMs Gardiner and obtained a $60,000 loan to buy the shares.2009: Ms Gardiner obtained 3,258 more AAC shares in her name and declared that she held those shares on behalfof the Trust. The shares were paid through the Trust.2010: Some of the 2001 and 2009 AAC shares were repurchased by CIP for a sum of money paid to the Trust. Thebalance was exchanged for CIP shares, of which the Trust became the owner.Family Court's findings High Court's findings Our findingsSection44Disposition? Ms Gardiner disposed allthe AAC/CIP shares to theTrust.The only relationship propertydisposed to the Trust wasMs Gardiner's right ofnomination in 2001. The 2009AAC shares were acquired bydividends from the 2001 AACshares so were not relationshipproperty.The 2001 and 2009 transfersof AAC shares to the Trustwere dispositions atMs Gardiner's direction. The2010 CIP share restructuringwas a disposition to the Trustby CIP on Ms Gardiner'sbehalf.Intention todefeat claim orrights?The AAC/CIP sharedispositions were madewith the intention ofdefeating Mr Dyer'sinterest.No evidence Ms Gardinerknew the right of nominationwas relationship property sono intention to defeatMr Dyer's claim or rights.Ms Gardiner intended todefeat Mr Dyer's claims orrights to the AAC/CIP shares.Good faith? Ms Gardiner and Mr Clarklacked good faith inrelation to the dispositionof the AAC/CIP shares.N/A. Ms Gardiner and Mr Clarkacquired the AAC/CIP sharesto defeat any claim Mr Dyerhad so did not act in goodfaith.Consideration? The only considerationpaid by the Trust was$45,000 credited toMs Gardiner's currentaccount in 2001.The Trust paid adequateconsideration for the 2001ACC shares. The 2009 AACshares were bought at marketvalue. The 2010 CIP sharesinvolved the Trustsurrendering its existingshareholding, which wasvaluable consideration.The Trust paid market pricefor all the shares eitherthrough loans forgiven byMs Gardiner or by the Trustrepaying money it was loanedto buy the shares. This waseither valuable or adequateconsideration.Valuation ofshares?The ACC/CIP and generalshares should be valued asat the date of the parties'separation.No question of valuationarises.The shares should be valuedas at the date of the hearing.Relief forMr Dyer?Section 44(2)(b): the Trustto pay Mr Dyer $216,107(half the value of all sharesheld by the Trust at thedate of the parties'separation).No basis for awarding half theTrust's general shares valuedas at separation date toMr Dyer.No remedy under s 44(2)(b) or(c). Refused to exercisediscretion to award reliefunder s 44(2)(a).Section44CAvailability? Not appropriate tocompensate Mr Dyerunder s 44C as Mr Dyerwas already receiving anaward under s 44.The Family Court Judge'sdecision to decline reliefunder s 44C was appropriatebecause of Mr Dyer's conductand benefits he received fromliving in the Trust's property.Relief available under s 44C ifno relief is granted under s 44.Section 44C(1) satisfied.Discretion exercised under s44C(2)(a) to award Mr Dyerhalf the increase in value ofthe AAC/CIP shares anddividends paid on those sharesbetween 2001 and the hearingdate.[178] We have endeavoured to ensure that the parties are now able to resolve anyoutstanding issues without needing to incur further expense by returning to Court.If, however, further directions are required leave is granted to the parties to apply forfurther directions.Costs[179] The appeal is allowed in part. Mr Dyer is entitled to costs for a standard appealon a band A basis with usual disbursements. We certify for two counsel. The costsare to be paid by Ms Gardiner and the Trust in whatever proportion they decide.Solicitors:Thomas Dewar Sziranyi Letts, Lower Hutt for AppellantGreenwood Roche, Wellington for First RespondentFrances Gush Family Lawyer, Upper Hutt for Second Respondents