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Boswell v Korving [2022] NZFC 4154

Published 21 December 2022

Reserved decision — application for transfer to High Court — jurisdiction — relationship property proceedings — interlocutory application for discovery — family trust — sham trust — constructive trust — right to fair and impartial judgment — Property (Relationships) Act 1976, ss 1N, 33, 38A, 44A & 44C — District Court Act 2016, s 74 — Trusts Act 2019, ss 5 & 141 — Boswell v Korving and Robert Koving Family Trust [2021] NZHC 3373 — Jacobson v Jacobson [2012] NZHC 2292. The parties were involved in relationship property proceedings to determine the division of relationship property. This hearing was to determine an application by the applicant to have the proceedings transferred to the High Court, pursuant to s 38A of the Property (Relationships) Act (the Act). The Court made reference to the new power of the Family Court to deal with matters involving trusts under the Trusts Act. In making its decision on this matter, the Court was required to take into account the complexity of the proceedings, whether there were any proceedings before the High Court involving the same parties or related issues, and any other circumstances that the Judge considered relevant. The Court's direction to transfer proceedings must also be exercised in accordance with the principles of the Act; that questions of relationship property should be resolved simply, quickly and inexpensively for the parties. The Judge considered these factors and determined that the Family Court had jurisdiction to consider the issues, proceedings were not overly complex, and transferring proceedings to the High Court would not result in a reduction of costs. The Judge dismissed the applicant's submission of impartiality and unfairness in the Family Court, citing other avenues to raise this issue and stating that they were not a factor in determining a transfer of proceedings. The application for transfer was declined and the Judge directed that the proceedings were to remain in the Family Court for determination. Judgment Date: 9 May 2022.