IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-002384
[2020] NZHC 580
UNDER THE
Property (Relationships) Act 1976
IN THE MATTER OF
an appeal from a decision of the Family Court at Auckland on 25 September 2019
BETWEEN
B
Appellant
AND
A
Respondent
Hearing:
17 March 2020
Appearances:
B Snedden and J Gandy for Appellant B D Hayes for Respondent
Judgment:
20 March 2020
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 20 March 2020 at 3.00pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Thomas and Co (J Gandy)/B Snedden, Auckland Kidd Legal/B D Hayes, Auckland
B v A [2020] NZHC 580 [20 March 2020]
Introduction
[1] On 25 December 2019, Judge Druce in the Family Court at Auckland, set aside a relationship property settlement agreement entered into between the parties pursuant to s 21A of the Property (Relationships) Act 1976 (the Act).1
[2] The appellant, Mrs B, has filed a notice of appeal against the decision. She asserts that Judge Druce erred when he concluded that giving effect to the agreement would cause serious injustice. She asserts that the Judge relied on erroneous facts in reaching this conclusion.
[3] The respondent, Mr A, has filed a notice of a cross-appeal. He also challenges factual findings made by the Judge, notwithstanding that the judgment was in his favour. He challenges findings that:
(a)there was no proposed “immigration scam” as alleged by him; and
(b)he was not unreasonably pressured to sign the s 21A agreement by Mrs B.
He also alleges that the Judge erred in admitting in evidence a translation of an email dated 18 January 2012.
[4] The appeal is set down for hearing on 19 May 2020. Both parties, in anticipation of the appeal, have filed interlocutory applications:
(a)Mrs B seeks leave to adduce further evidence by way of affidavit pursuant to s 39B(3)(b) of the Act and r 20.16 of the High Court Rules. This application was initially consented to by Mr A, but subsequently he has withdrawn consent and filed a notice of opposition;
(b)Mr A seeks an order under r 9.34 requiring Mrs B to disclose the user name and password for her “gmail” account to an independent expert
1 A v B [2019] NZFC 7726.
so that that expert can check whether the email of 18 January 2012 is authentic or not, and a further order under s 39B(3)(b) and r 20.16 granting him leave to adduce such evidence as shall be obtained as a result of that inspection. This application is opposed by Mrs B.
(c)Mr A also seeks leave under s 39B(3)(b) and r 20.16 to file an affidavit in reply…
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.
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AGLC
B v A [2020] NZHC 580
Case
[2020] NZHC 580
Decision Date
CaseChat Overview and Summary
In the High Court of New Zealand, the case of B v A [2020] NZHC 580 was heard. The appeal was against a Family Court decision to set aside a relationship property settlement agreement between the parties, Mrs B and Mr A. The agreement had been made under s 21A of the Property (Relationships) Act 1976. Mrs B challenged the Family Court's conclusion that enforcing the agreement would cause serious injustice, while Mr A cross-appealed against findings of fact made by the Family Court. Both parties also filed interlocutory applications seeking leave to adduce further evidence and orders for inspection of electronic communications. The court found that the interests of justice required the admission of further evidence by Mrs B, as the circumstances were exceptional, and the evidence was credible, cogent, and material. However, the court declined Mr A's application for an order for inspection, finding that it was not necessary for the proper determination of the appeal and that Mr A was not entitled to challenge the Family Court's factual findings. The court stayed the Family Court's decision pending the hearing of the appeal and ordered that Mrs B could adduce further evidence, while Mr A could file an affidavit in reply. The court also declined Mr A's application for an order under r 9.34. Mrs B was granted leave to claim her reasonable costs and disbursements.