Da Silva v Da Silva [2016] NZHC 2064, 1 September 2016
- Court
- High Court
- Judgment
- 1 September 2016
- Neutral
- [2016] NZHC 2064
Areas of law
Judgment analysis
AI-generated summary
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Facts
Mr and Mrs da Silva married in 1988 and separated in 2012. In 2000, Mrs da Silva's mother, Mrs Perris, settled the Duzus Family Trust for the benefit of herself, Mrs da Silva, and their five children; Mr da Silva was never a beneficiary. The trust's main asset is the shares in AHL, a company holding commercial property. After Mrs Perris's death in 2004, Mr and Mrs da Silva became directors of AHL, and Mr da Silva managed its day-to-day affairs. Most of AHL's net income was drawn by Mr and Mrs da Silva and used for family expenses, recorded as salaries, drawings, and advances. Mr da Silva brings claims against Mrs da Silva, the trust, and AHL, seeking a share in the trust's assets under various relationship property and equitable doctrines.
Held
- A discretionary beneficiary's interest in a trust where they do not have unfettered control and, as a trustee, have fiduciary duties to all beneficiaries, is not 'property' for the purposes of the Property (Relationships) Act 1976.
- A disposition of property made to correct an error and not with the intention of defeating a spouse's claim is not a disposition that can be set aside under s 44 of the Property (Relationships) Act 1976.
- A claim for compensation under s 44C of the Property (Relationships) Act 1976 requires a disposition of 'relationship property' to a trust; if the property was never relationship property, the claim fails.
- A trust settled by a third party for the benefit of one spouse and children, while deliberately excluding the other spouse, lacks the necessary 'connection or proximity' to the marriage to be considered a 'post-nuptial settlement' under s 182 of the Family Proceedings Act 1980.
- A claim for a constructive trust over trust assets fails if the claimant has already received benefits from the trust or associated entities that substantially exceed the value of their contributions.
Orders
The loss on the rental property is relationship debt. The shares in DASL are valued at $68,000. The parties are to share equally the outgoings on the rental property and family home, and Mr da Silva is to pay occupation rent for the family home. No adjustments are required for debts to AHL or the trust. All other claims by Mr da Silva fail. Leave to apply is granted, and costs are reserved. [108]-[114]
Key passages1
A 'settlement' for the purposes of s 182 FPA must be an arrangement that 'makes some form of continuing provision for both or either of the parties to a marriage in their capacity as spouses, with or without provision for their children'. There must be a connection or proximity between the settlement and the marriage.
“We agree with the analysis of the Court of Appeal in Ward. We add that we see the requirement that the settlement be for both or either of the parties 'in their capacity as spouses' as meaning only that there must be a connection or proximity between the settlement and the marriage.”
Cases mentioned in judgment
Legislation mentioned
- Property (Relationships) Act 1976, s 2, s 8(e), s 8(ee), s 9A, s 9A(2), s 10, s 10(2), s 15, s 15A, s 17, s 18, s 44, s 44(1), s 44C, s 44C(1), s 44D
- Family Proceedings Act 1980, s 182
- Matrimonial Proceedings Act 1963, Part 2, Part 4
- High Court Rules, r 11.5