Cannon v Cox [2019] NZFC 5363

Published 13 March 2020

Transfer of trust property — tenants in common — value and division of chattels — post-separation contributions — Property (Relationships) Act 1976, ss 1, 2, 8, 14, 16, 18, 20, 21 & 44 — Regal Castings Ltd v Lightbody [2008] NZSC 87 — Ryan v Unkovich [2010] 1 NZFLR 434 — Sands v O'Horgan [2017] NZFLR 499 — SMW v MC [2013] NZHC 396 — Gray v Gray [2013] NZHC 2890 — Potter v Horsfall [2016] NZFLR 974 — Welch v OA [1998] NZFLR 446 — Lu v Huang [2016] NZHC 2311 — Thaler v Trotter [2016] NZHC 1508. The applicant sought the transfer of the parties' former family home from a trust to the parties as tenants in common in equal shares. Shortly after the beginning of the parties' relationship, while living with the applicant, the respondent had transferred his home into a trust. The applicant had sold her apartment and applied all of the net profits to improving the family home. Eight years later the parties' relationship had ended. The respondent also sought compensation for chattels the applicant had sold and payments he had made for the upkeep of the family home post-separation. In order for the family home to be transferred from the trust to the parties as tenants in common, the applicant had to prove on the balance of probabilities that the respondent had transferred the home to the trust to defeat any claim or rights she had (or would come to have) in the property, otherwise than in good faith and for valuable consideration. Based on the evidence, the Judge determined that the respondent was aware that his actions would defeat the applicant's rights in regards to the property. Valuable consideration was not provided and it was never intended that this would occur. The Judge therefore ordered the transfer of the property from the trust to the parties as tenants in common. As the respondent had paid all the outgoings on the home and the applicant had enjoyed the use of the home for over three years without paying occupation rent, the applicant was to reimburse the respondent for half of the payments and half of the rent for the relevant period. The applicant was also ordered to pay the respondent half the value of chattels she had unilaterally sold post-separation and half of a credit card bill paid by the respondent. These adjustments were to be deducted from the applicant's share of the home. Judgment Date: 17 July 2019. * * * Note: names have been changed to comply with legal requirements. * * *