Cross v Cross - [2017] NZHC 1272

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-2017-404-000309 [2017] NZHC 1272

BETWEEN
CLAYTON CROSS

Applicant/Respondent

AND

VALERIE PATRICIA CROSS Respondent/Applicant

Hearing: 31 May 2017

Appearances:

G J Hamlen-Williams for Applicant/Respondent
C J R Baird and A V Shinkarenko for Respondent/Applicant

Judgment:

12 June 2017

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 12 June 2017 at 3.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Collins & May Law, Lower Hutt
McLeod & Associates/C J R Baird, Auckland

CROSS v CROSS [2017] NZHC 1272 [12 June 2017]

Introduction

[1] In September 2016, the applicant/respondent, Mr Cross, filed an application in the Family Court at Auckland for orders under the Property (Relationships) Act
1976 (the “Act”).

[2] The respondent/applicant, Mrs Cross, filed an appearance under protest to jurisdiction. She asserted that the parties had entered into a contracting out agreement under s 21 of the Act in March 2004 (the “contracting out agreement”), that the contracting out agreement was in full force and effect and that there was no relationship property available for division under the Act.

[3] In November 2016, Mr Cross responded by filing an application to set aside and/or rectify the contracting out agreement. He also sought various additional orders – including orders:

(a) requiring Mrs Cross to disclose information relating to the nature and extent of all relationship and separate property;

(b)declaring what property is relationship property and what property is separate property;

(c) determining the respective shares of the parties in their relationship property;

(d)requiring Mrs Cross to disclose information relating to the disposition of any property made to defeat his rights;

(e) requiring Mrs Cross to disclose information relating to the disposition of any relationship property to any Trust; and

(f) consequential orders following on from any disposition(s).

These additional orders were sought pursuant to ss 8, 9, 9A, 10, 11, 21O, 23, 25, 33,

43, 44, 44C and 45 of the Act.

[4] Mrs Cross then filed the application which is now before the Court –namely an application to strike out Mr Cross’ proceedings. The application was filed under rr 193 and 194 of the Family Court Rules 2002. An amended application was filed shortly thereafter, and Mr Cross in turn filed a notice of opposition.

[5] On 1 March 2017, the Family Court, by consent, transferred the proceedings to this Court.

Background

[6] As is so common in proceedings of this kind, little is agreed and much is in dispute. What follows is an attempt to outline, for the purposes of Mrs Cross’ application, the core dispute between the parties gleaned from the many affidavits that have been filed to date.

[7] The parties met in 1995 and they married on 7 November 1998. At some…

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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Details

Case: [2017] NZHC 1272
Decision Date: 12 June 2017

CaseChat Overview and Summary

The applicant/respondent, Mr Cross, filed an application in the Family Court at Auckland for orders under the Property (Relationships) Act 1976 (the “Act”) in September 2016. The respondent/applicant, Mrs Cross, filed an appearance under protest to jurisdiction, asserting that the parties had entered into a contracting out agreement under s 21 of the Act in March 2004 (the “contracting out agreement”), that the contracting out agreement was in full force and effect, and that there was no relationship property available for division under the Act. Mr Cross responded by filing an application to set aside and/or rectify the contracting out agreement and sought various additional orders, including orders: requiring Mrs Cross to disclose information relating to the nature and extent of all relationship and separate property; declaring what property is relationship property and what property is separate property; determining the respective shares of the parties in their relationship property; requiring Mrs Cross to disclose information relating to the disposition of any property made to defeat his rights; requiring Mrs Cross to disclose information relating to the disposition of any relationship property to any Trust; and consequential orders following on from any disposition(s). Mrs Cross then filed an application to strike out Mr Cross’ proceedings. The court held that Mrs Cross’ application to strike out Mr Cross’ applications made to the Family Court is declined. The contracting out agreement was not clearly untenable, and there was no evidence of abuse of process.

Orders