Barry v Harris - [2025] NZHC 711

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-833

[2025] NZHC 711

UNDER the Property Law Act 2007

IN THE MATTER

of an application for an order under

section 339 of the Property Law Act 2007

BETWEEN

CAMPBELL NICHOLAS BARRY AND LAURA JANE BARRY

Plaintiffs

AND

ERNEST JOHN HARRIS

First Respondent

DEBRA ANN HARRIS

Second Respondent

Hearing: On the Papers

Counsel:

D G Dewar for Plaintiffs

P R C Reid for First Respondent Second Respondent in person

Judgment:

31 March 2025

JUDGMENT OF McQUEEN J

[1] This proceeding concerns an application under the Property Law Act 2007 by the plaintiffs, Mr and Mrs Barry. They seek an order that property in which they and the respondents, Mr Harris and Ms Harris, own half-shares as tenants in common (the Property) be divided on terms by which Mr and Mrs Barry acquire the title of Mr Harris and Ms Harris at current market value (the substantive application).

[2] When the proceeding was commenced in December 2024, Mr and Mrs Barry also applied on a without notice basis for an order prohibiting the publication of the

BARRY AND BARRY v HARRIS [2025] NZHC 711 [31 March 2025]

names of the parties to this proceeding, or any particulars likely to identify them, such as their addresses and occupations, and an order preventing search of the Court file without leave of a Judge.

[3] By a minute dated 18 December 2024, Boldt J made a non-publication order expiring on 14 February 2025, unless renewed by a Judge. On 12 February 2025, La Hood J directed that the parties file and serve affidavits and submissions regarding the continuation of the non-publication order. The non-publication order was continued pending determination of the application.

[4] Mr and Mrs Barry have filed their evidence and submissions in support of their application. Mr Harris supports the application. Ms Harris has not filed submissions but has filed an affidavit and sent to the Court and other parties a lengthy email which responds to issues raised in Mr and Mrs Barry’s evidence, from which it is plain she opposes a non-publication order.

[5] Following the call of this matter in the Judge’s Chambers List on 10 March 2025, Grau J directed that the application for continuation of non-publication orders be referred to a Judge for determination on the papers.

Background

[6] Mr Barry is the Mayor of Lower Hutt. Mrs Barry is a lawyer practising in Lower Hutt. Mr and Mrs Barry, together with Mr Harris and Ms Harris, purchased the Property in 2019. Mr Harris and Ms Harris are the parents of Mrs Barry. Mr Harris and Ms Harris have separated. Proceedings have been underway in the Family Court since 2022 to resolve their relationship property matters. It is the Property that is the subject of the substantive application in this proceeding. The Family Court does not have jurisdiction to divide the Property in the manner sought by Mr and Mrs…

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 Barry v Harris

Details

AGLC: Barry v Harris [2025] NZHC 711
Case: [2025] NZHC 711
Decision Date: 31 March 2025

CaseChat Overview and Summary

The case of Barry v Harris involves a property dispute between Mr and Mrs Barry and Mr and Ms Harris, who own half-shares in a property as tenants in common. The Barrys have applied for an order to divide the property under the Property Law Act 2007, but also sought a non-publication order to prevent the disclosure of their identities and other particulars, as well as an order to restrict access to the court file without leave. The primary legal issue before the court was whether the non-publication and restricted access orders were justified under the circumstances of the case.

The court considered the principle of open justice, which is fundamental to the administration of justice, and the freedom of expression guaranteed by the New Zealand Bill of Rights Act 1990. While the court recognised the distress and potential harm caused to the Barrys by the public nature of the proceedings, it ultimately found that the private nature of the family dispute and Mr Barry's public role did not constitute sufficient grounds to depart from the principle of open justice. The court highlighted that there were other legal remedies available to the Barrys, such as those provided under the Harmful Digital Communications Act and the Harassment Act 1997, which might be more appropriate to address their concerns.

Accordingly, the court declined the application for non-publication and restricted access orders, allowing the non-publication order already in place to expire on 4 April 2025. The court's decision underscored the importance of the principle of open justice and the need to balance it against the privacy and safety concerns of the parties involved.

Orders