Case number NZCA 231Date of Judgment11 June 2020SummaryAppeal allowed.
The husband must pay the wife the sum of $700,000 without delay on the terms ordered at  of our previous judgment ( NZCA 546). Husband’s application to adduce further affidavit evidence declined. Costs award to wife.
Practice and Procedure – Interlocutory appeal
Relationship Property – Interim Distribution
The High Court ordered sale of the former family home (“Closeburn”) and ordered that each party was to receive an interim distribution of $1.5 million from the proceeds when the property sold. Ms Biggs (“the wife”) was subsequently awarded two interim distributions of $200,000 from Mr Biggs (“the husband”), which would be reimbursed from wife’s share of the sale of Closeburn.
The wife now appeals against an interlocutory judgment of the High Court in which Nation J refused her an additional interim distribution of $1,100,000 to be paid by the husband, from what he maintains is his separate property and accounted for in the ultimate settlement of her claims to relationship and separate property.
Should an additional interim distribution to the wife be ordered?
Held: Yes. The husband has, or can raise, funds to pay the interim distribution sought. Closeburn is undoubtedly relationship property and is susceptible to an order for interim distribution under s 25(3) of the Property (Relationships) Act 1976. As the former family home it is also subject to a powerful presumption of equal sharing. There is no reason to doubt that the amounts the husband has been ordered to pay, plus the distribution now sought, would be repayable from the wife’s share of the proceeds of the Closeburn sale.
The question on which this appeal turns is whether the burden of funding the wife’s costs through trial should be borne by the husband or by the wife’s advisors. An applicant for interim distribution should not be required to engage advisors who are prepared to work on a delayed payment basis when there is a pool of relationship property available to fund the litigation.
The wife’s arrangements with her advisors in this case are relevant because her application has been made at a late stage to fund costs already incurred, and the status of the property that will be used to fund the interim distribution, pending sale of Closeburn, is in dispute. A further interim distribution is warranted. It is not reasonable in the circumstances to require that the wife’s advisors continue to bear the entire burden of funding her claim. However, unlike the lawyers and expert witnesses the wife owes, the accounting firm have security and are charging the wife interest.
We order that the husband make an interim distribution that will substantially fund the wife’s legal and expert witness costs but leaves it to her to decide how the payment is distributed among her advisors. The distribution is intended to balance the competing interests of the wife and the husband, and to ensure that any necessary adjustments can be made from a pool of relationship property the nature and size of which remains to be fixed.
We must also recognise that the husband claims to have advanced other sums to the wife and that all of the money he has paid, including interim distributions, may end up being reimbursed from the eventual sale of Closeburn, which seems likely to be delayed for some time. We order that the sum of $700,000 is to be paid to the wife without delay on the terms ordered at  of our previous judgment.