Mark Albert Horsfall v Diana Jane Potter

IN THE SUPREME COURT OF NEW ZEALAND

SC 138/2016
[2017] NZSC 21

BETWEEN

MARK ALBERT HORSFALL
Applicant

AND

DIANA JANE POTTER
First Respondent

168 GROUP LIMITED
Second Respondent

Court:	William Young, Glazebrook and Arnold JJ
Counsel:	T G Stapleton QC for Applicant J R Billington QC, R A Newberry and T Cleary for First Respondent R J B Fowler QC for Second Respondent
Judgment:	2 March 2017

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted (Potter v Horsfall [2016] NZCA 514).

BThe approved question is whether the Court of Appeal was right to find that the disposition of the proceeds of the College Street property was made by the applicant to defeat the claim or rights of the first respondent for the purposes of s 44 of the Property (Relationships) Act 1976.

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REASONS

One of the issues raised in this appeal is the principle discussed in Potter v Potter (and in subsequent cases).[1] Given that the principle is in issue as a result of the position adopted by the appellant for tax purposes, and that the principle has, in any event, wider public policy implications, we consider that we may be assisted by submissions from the Crown on the relevant policy considerations. Accordingly, we direct the Registrar to bring the appeal to the attention of the Solicitor-General so that she can determine whether the Attorney-General wishes to intervene to assist the Court in that regard.
[1]Potter v Potter [2003] 3 NZLR 145 (CA), aff’d Potter v Potter [2004] UKPC 41, [2005] 2 NZLR 1.

Solicitors:
Langford Law, Wellington for Applicant
Sievwrights, Wellington for First Respondent
Thomas Dewar Sziranyi Letts, Lower Hutt for Second Respondent

CaseChat Overview and Summary

In this case, Mark Albert Horsfall has appealed against the decision of the New Zealand Court of Appeal in relation to the disposition of the proceeds from the College Street property. Diana Jane Potter is the first respondent, while 168 Group Limited is the second respondent. The appeal has been brought before the Supreme Court of New Zealand, with Justices William Young, Glazebrook, and Arnold presiding. The matter was argued by T G Stapleton QC for the applicant, J R Billington QC, R A Newberry, and T Cleary for the first respondent, and R J B Fowler QC for the second respondent. The judgment was delivered on 2 March 2017.

The primary legal issue in this appeal revolves around the interpretation and application of section 44 of the Property (Relationships) Act 1976. The Court of Appeal had determined that the disposition of the proceeds from the College Street property was made by the applicant to defeat the claim or rights of the first respondent. The central question before the Supreme Court was whether this determination was correct. Additionally, the Court considered the broader implications of the principle discussed in Potter v Potter, particularly in light of the appellant's tax position and the wider public policy considerations.

The Supreme Court granted the application for leave to appeal and approved the specific question for review. They decided to seek the Crown's input on the policy implications of the principle in question, directing the Registrar to notify the Solicitor-General to allow the Attorney-General the opportunity to intervene if deemed necessary. This approach was taken to ensure a comprehensive understanding of the public policy considerations involved in the appeal. The Court's reasoning and decision are detailed in the formal judgment, which outlines the procedural steps and the rationale behind their determination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established