A v C - [2019] NZHC 2814

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-000344

[2019] NZHC 2814

BETWEEN
A

Appellant

AND

C

Respondent

Hearing: 29 October 2019

Counsel:

N Levy for the Appellant

M Freeman for the Respondent

Judgment:

31 October 2019

JUDGMENT OF DOOGUE J

Introduction

[1] The appellant, Ms A, appeals the reserved judgment of Judge T M Black dated 30 May 2019, dismissing her applications to set aside two contracting out agreements, one dated 9 July 2004 (the First Agreement) and the second undated1 (the Second Agreement) on the grounds that giving effect to both agreements would cause her serious injustice.2

1 Agreed by the parties to have been signed sometime during March 2010.
2 Property (Relationships) Act 1976, s 21J.

A v C [2019] NZHC 2814 [31 October 2019]

The Family Court decision

[2] The Family Court Judge found the parties had lived together between 2000 and 2015.3 They have three children.4 At the time the parties met, Mr C’s separate property included his shares in Virtual Plumbing Limited (VPL).5 The parties entered into a contracting out agreement on 9 July 2004.6 On the same day a deed was executed establishing the C Family Trust (the Trust).7 In 2010, a further contracting out agreement was signed by the parties.8

[3] The Judge then turned to s 21J(4)(a) of the Property (Relationships) Act 1976 (the Act) and found that the substantive effect of the first agreement was that:9

(a)The parties’ family home at Kiln Avenue is declared to be relationship property (which is simply a statement of the legal position which existed at the date of the first agreement).

(b)Mr C’s commercial interests are recorded as his separate property (which again, is nothing more than a statement of the legal position which existed at the time of the agreement).

(c)The Act (and in particular, various compensatory provisions) is contracted out of.

[4] The Second Agreement affirmed the provisions of the First Agreement and also provided for the Trust to guarantee the obligations of VPL for the purposes of refinancing. The guarantee included a mortgage over the Trust’s property. Further, Mr C agreed to indemnify Ms A from any liability arising under the guarantee if a call was ever made on the guarantee.10

3      A v C [2019] NZFC 3735 at [1] [Family Court Decision].
4 At [1].
5      At [32] of the Family Court Decision, the Judge addresses the nomenclature of Mr C’s businesses and no issue is taken with this on appeal.
6 At [8].
7 At [9].
8      At [10] of the Family Court Decision, the Judge described the Second Agreement as being signed in March 2010.
9 At [33].
10 At [34].

[5] The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v C

Details

AGLC: A v C [2019] NZHC 2814
Case: [2019] NZHC 2814
Decision Date: 31 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Ms A, the appellant, appeals the decision of the Family Court Judge, who dismissed her applications to set aside two contracting out agreements on the grounds that giving effect to both agreements would cause her serious injustice. The appeal concerns two contracting out agreements between Ms A and Mr C, the respondent. The First Agreement was dated 9 July 2004 and the Second Agreement was executed in March 2010. The Family Court Judge found the provisions of both agreements were straightforward and unremarkable and that they did not provide for a joint pool of relationship property. The Judge concluded that the agreements were not unfair or unreasonable and dismissed Ms A's applications. Ms A appeals the Judge's decision on three grounds. First, whether the Judge erred in finding the parties had contracted out of s 9A(1) of the Property (Relationships) Act 1976 in the agreements. Second, whether the Judge erred in classifying Mr C's earnings for his services to Virtual Plumbing Limited as his separate property. Third, whether the Judge erred in concluding that giving effect to the contracting out agreements would not cause serious injustice. The appeal on the first ground is dismissed. The appeal on the second ground is allowed. The matter is remitted to the Family Court for reconsideration in light of this decision.

Orders