Bartram v Bartram - [2016] NZHC 2706

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1036 [2016] NZHC 2706

BETWEEN
ANDREA CLARE BARTRAM

Appellant

AND

IAN RAYMOND BARTRAM Respondent

Hearing: 25 August 2016

Counsel

J Noble for Appellant
C T Patterson and N J Hartwell for Respondent

Judgment:

16 November 2016

JUDGMENT OF WHATA J

This judgment was delivered by me on 16 November 2016 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Boyle Mathieson, Auckland
KPLegal Limited, Auckland

BARTRAM v BARTRAM [2016] NZHC 2706 [16 November 2016]

[1] This is an appeal from a decision of Judge M L Rogers, granting relief pursuant to the Property (Relationships) Act 1976 (the Act).1 The Judge found that the sum of $290,000 contributed by Mrs Bartram to the purchase of the first family home was her separate property; the Judge set aside the contracting-out agreement (the agreement) and he directed that the balance of the real property be divided in accordance with the provisions of the Act.2

[2] Mrs Bartram now appeals that decision on the following grounds:

(a) Ground 1: The Court failed to compare what division of the property would be effected under the agreement and what division of property would be effected if the agreement was set aside.

(b)Ground 2: The Court erred in finding that Mr Bartram would receive assets worth in the vicinity of $20,000, while Mrs Bartram would retain assets worth in excess of $1.4m if the agreement was upheld.

(c) Ground 3: The Court failed to take into account that Mr and Mrs Bartram made decisions with legal and accounting advice to purchase property in the names of persons and companies for taxing and credit protection reasons.

(d)Ground 4: The Court erred in identifying an inescapable tension between cls 3.1 and 5.2 of the agreement.

(e) Ground 5: The Court erred in finding that cl 6.2 of the agreement was inconsistent with cl 4.2(c) of the agreement.

(f) Ground 6: The Court was wrong in finding that 14 Swainston Road, St Johns, Auckland, was owned by IA Holdings Limited, not the
parties, and so was not a family home as defined in the agreement.

1 Bartram v Bartram [2016] NZFC 692.
2 Some personal property was identified as separate property but those items have limited relevance to the appeal.

(g) Ground 7: Overall, the Court was wrong to set aside the agreement. [3] Mr Bartram has cross-appealed on the basis that the Judge erred by:
(a) Finding that the contracting-out agreement entered into by the parties was “broadly similar” to the contracting-out agreement previously drafted by the Mr Bartram’s solicitors;

(b)Considering a range of factors as relevant in determining the adequacy of the advice given to Mr…

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 Bartram v Bartram

Details

AGLC: Bartram v Bartram [2016] NZHC 2706
Case: [2016] NZHC 2706
Decision Date: 16 November 2016

CaseChat Overview and Summary

This is an appeal from a decision of the Family Court that set aside a contracting-out agreement between the parties, pursuant to s 21J of the Property (Relationships) Act 1976. The agreement had allocated to the wife separate property worth over $1.4m, while the husband would have received assets worth approximately $20,000. The wife appealed, contending, inter alia, that the Family Court failed to properly assess the effect of the contracting out agreement, and that the husband intentionally ring-fenced the Swainston Road property for commercial reasons. The husband cross-appealed, contending, inter alia, that the contracting-out agreement was valid, having regard to the advice given to him in advance of execution. The appeal and cross-appeal were dismissed. The Court found that the contracting-out agreement was unjust, as it would have resulted in a disparate outcome which was seriously unjust in the circumstances. The Court found that the husband had not intentionally ring-fenced the Swainston Road property for commercial reasons, and that the contracting-out agreement was valid, having regard to the advice given to the husband in advance of execution.

Orders