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Burt v Yiannakis

Burt v Yiannakis

Case [2024] NZHC 3987 20 December 2024

Civil Litigation & Procedure

Property Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2013-404-3251

[2024] NZHC 3987

BETWEEN
DEANNE MARGARET BURT

Applicant

AND

YIANNOS YIANNAKIS

Respondent

Hearing: 26 October 2023

Appearances:

A J Peat, P K J Roycroft and R J MacDonald for the Applicant Y Yiannakis as self-represented Respondent

Judgment:

20 December 2024

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 20 December 2024 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel: MBC Law, Ellerslie A J Peat, Auckland
P K J Roycroft, Auckland

Copy to:
Mr Y Yiannakis (Respondent)

BURT v YIANNAKIS [2024] NZHC 3987 [20 December 2024]

Introduction

[1] Ms Burt and Mr Yiannakis were married. They separated in 2012. Protracted litigation about the division of their relationship property ensued. In a laudable (but evidently unsuccessful) attempt finally to resolve matters, they agreed to orders which Asher J in this Court made by consent on 17 October 2016 (the consent orders). In broad terms, Ms Burt gave up any claim or interest in seven properties in New Zealand and in London. In return, she was to receive $450,000 in two instalments. Mr Yiannakis was also to arrange her release from any liability with respect to any loan in relation to three of those properties. And, to keep Ms Burt indemnified with respect to any outgoings on those properties.

[2] Mr Yiannakis has paid Ms Burt the first instalment of $250,000, and she has transferred her shares in the company that owned the properties. However, Mr Yiannakis has not paid Ms Burt the second instalment of $200,000, which was due on 30 January 2018, 15 weeks after the consent orders.

[3] Mr Yiannakis says he is willing and able to pay Ms Burt the $200,000 when she transfers her interests in two of the London properties to him. Ms Burt says that she will make the transfer, but not until she is released from any liability under the loans secured by mortgages over those properties. Mr Yiannakis says he has done all he can to arrange those releases, but the mortgagee banks will not agree. He has agreed to indemnify Ms Burt with respect to any claim or default arising out of those secured loans.

[4] On 8 February 2018, Ms Burt issued a bankruptcy adjudication proceeding against Mr Yiannakis in relation to the $200,000 he owes her under the consent orders. Mr Yiannakis opposed on the basis that he was willing and able to pay the outstanding debt, but Ms Burt had imposed conditions on her acceptance of the money that were not permissible under the consent orders: in particular, before transferring her interest in the London properties she requires to be released from her mortgage debt, which Mr Yiannakis says the mortgagees will not permit.

[5] Associate Judge Smith dismissed Ms Burt’s application.1 He found that Mr Yiannakis appeared to have misunderstood his obligation to procure Ms Burt’s release from…

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 Burt v Yiannakis

Details

AGLC: Burt v Yiannakis [2024] NZHC 3987
Case: [2024] NZHC 3987
Decision Date: 20 December 2024

CaseChat Overview and Summary

The case of Burt v Yiannakis concerns a dispute between Deanne Margaret Burt and Yiannis Yiannakis, a former married couple, over the interpretation and implementation of consent orders made by Asher J on 17 October 2016. The consent orders related to the division of their relationship property, including the transfer of interests in certain properties and payment of a settlement amount. The central issue in this case is whether Mr Yiannakis is required to arrange for Ms Burt to be released from any liability with respect to loans relating to two London properties before she transfers her interests in those properties to him. The court was also required to determine whether Mr Yiannakis’ obligation to arrange those releases should occur before Ms Burt transfers her interest in the properties, subject to Mr Yiannakis paying her $200,000.

The court examined the consent orders and the background of the negotiations leading up to their drafting. It found that the orders required Ms Burt to transfer her interests in the London properties "subject to the existing loans" and that Ms Burt's obligation to transfer was expressly made subject to Mr Yiannakis' obligation to pay her $200,000. However, Ms Burt's obligation to transfer was not expressly made subject to Mr Yiannakis' obligation to arrange her release from liability. The court held that Mr Yiannakis' obligation to arrange Ms Burt's release from the relevant loans was to be performed interdependently with his obligation to pay her $200,000. The court dismissed Ms Burt’s application for orders as to the proper interpretation of the consent orders and declined to direct Mr Yiannakis to promptly comply with his obligations under the consent orders, finding that such a direction would add nothing to the terms of the Consent Orders already in place.

In conclusion, the court found that Mr Yiannakis' obligation to arrange Ms Burt's release from the relevant loans was to be performed interdependently with his obligation to pay her $200,000. The court dismissed Ms Burt’s application for orders as to the proper interpretation of the consent orders. The case highlights the importance of clear and precise drafting in consent orders and the court's reluctance to interfere with the terms of such agreements unless there is a clear error or misunderstanding.

Orders