AB v CD - [2023] NZHC 610

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2022-485-171

[2023] NZHC 610

IN THE MATTER OF an application under section 166 of the Senior Courts Act 2016

BETWEEN

AB

Applicant

AND

CD

Respondent

Hearing: 23 February 2023 (further memorandum received 16 March 2023)

Counsel:

M S Smith and D Qiu for Applicant C M Kenworthy for Respondent

Judgment:

24 March 2023

JUDGMENT OF MALLON J

Introduction

[1] AB and CD were in a de facto relationship. Following their separation, CD brought several Disputes Tribunal claims and court proceedings against AB and made multiple complaints to various bodies about her. AB now applies for an order restricting CD from commencing or continuing civil proceedings on matters relating to their relationship without leave of the Court.1 CD opposes the application. She says the grounds, requiring at least two or more proceedings that were totally without

1 Senior Courts Act 2016, s 166.

AB v CD [2023] NZHC 610 [24 March 2023]

merit,2 are not met and, in any event, the Court should not exercise its discretion to make the order.

Background

The relationship

[2] CD and AB were in a relationship and lived together from 8 January 2016 until 18 March 2017. On 8 December 2015 the parties incorporated a company (MGL) to own the property in which they would live and operate a farm. They purchased that property on 8 January 2016. The purchase price was $758,500. CD paid more towards that purchase. She also advanced a loan to AB to form part of her contribution to the purchase price pending a loan AB obtained from Westpac. The Westpac loan was secured by a mortgage against the property that was guaranteed by CD. Reflecting her greater contribution to the purchase price, CD owned 57 per cent of the MGL shares and AB owned 43 per cent. They were both directors of MGL.

[3] On 21 December 2016 the parties entered into a contracting out agreement under s 21 of the Property (Relationships) Act 1976 (the PRA). The agreement recorded that:

E.… the property already owned by either of them separately prior to the date of [the] agreement whether acquired during the period of their relationship or otherwise or which they may at any time acquire from third parties by gift, succession or survivorship or as a beneficiary under any trust is not and will not be produced by them jointly and is not to be treated as joint relationship property.

F.They intend that any other property that is classified as relationship property shall be divided equally between them.

G.[They] wish to resolve all questions outstanding between them as to their respective rights and property and they intend that this agreement will constitute a full and binding settlement of all matters at issue between them affecting their relationship and separate property and by so doing, they confirm…

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 AB v CD

Details

AGLC: AB v CD [2023] NZHC 610
Case: [2023] NZHC 610
Decision Date: 24 March 2023

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether to make an order under section 166 of the Senior Courts Act 2016 restricting CD from bringing further civil proceedings against AB without leave of the Court. CD and AB had been in a de facto relationship and were now separated. AB argued that CD had commenced multiple proceedings against her that were totally without merit, and that CD was likely to continue to bring such proceedings in the future. CD opposed the application on the grounds that the proceedings were not totally without merit and that the Court should not exercise its discretion to make the order. The Court was required to determine whether there were at least two proceedings that were totally without merit, and if so, whether to exercise its discretion to make the order and what the terms of the order should be. After considering the evidence, the Court found that there were at least two proceedings that were totally without merit, and exercised its discretion to make the order. The Court made an order prohibiting CD from continuing any civil proceeding in any Court or Tribunal, concerning or relating to her relationship with AB, for three years, except for any necessary application under the Family Violence Act 2018.

The Court of Appeal in Mawhinney v Auckland Council held that the term "totally without merit" meant "bound to fail". The Court in the present case found that the High Court Companies Act proceeding and the Family Court personal property claim were totally without merit because they were bound to fail. The Court noted that the contracting out agreement should have enabled a clean and efficient separation of property following the breakup of the relationship, but unfortunately, that had not been the case, largely due to CD's ongoing claims. The Court accepted that CD had sometimes acted on legal advice, but at the end of the day, it had been CD's decision to pursue claims. The Court exercised its discretion to make the order because CD's conduct was oppressive of AB. The Court made an order in the following terms: The respondent is prohibited: (1) From continuing, without leave, any civil proceeding in any Court or Tribunal, concerning or relating to her relationship with the applicant, for three years; and (2) From continuing, without leave, Disputes Tribunal proceeding CIV- 2021-091-43. This order does not prohibit the respondent from making any necessary application under the Family Violence Act 2018. The Court also made a suppression order and an order for costs on a 2B basis in favour of AB.

Orders