Edwards v Edwards - [2012] NZHC 1630

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2011-488-822 [2012] NZHC 1630

IN THE MATTER OF the High Court Rules and Property
(Relationships) Act 1976

BETWEEN IRENE ANNE EDWARDS Plaintiff

ANDSIDNEY LUCIEN EDWARDS First Defendant

ANDEDWARDS LANDS LIMITED Second Defendant

ANDSIDNEY LUCIEN EDWARDS AND IRENE ANNE EDWARDS AND WAYNE MICHAEL WEBER (AS TRUSTEES OF THE SID AND IRENE EDWARDS FAMILY TRUST)
Third Defendant

ANDSIDNEY LUCIEN EDWARDS, WAYNE MICHAEL WEBER AND GEORGE MIDDLETON PALMER (AS TRUSTEES OF THE S L EDWARDS FAMILY
TRUST)
Fourth Defendant

Hearing: 5 June 2012

Appearances: C J Cook for Plaintiff
D R James for Defendants

Judgment: 11 July 2012

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 11 July 2012 at 9:30am
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar

EDWARDS V EDWARDS HC WHA CIV-2011-488-822 [11 July 2012]

Solicitors:
Cook Westenra Limited (C J Cook), P O Box 127 Whangarei 0140, for Plaintiff
Email: Christina@cookwest.co.nz
Palmer Macauley (D R James) P O Box 576 Kerikeri, for Defendants
Email: david@pmlaw.co.nz

[1] The plaintiff has applied for summary judgment. She seeks specific performance of heads of agreement made on 7 October 2010 in a judicial settlement conference in the Family Court at Kaikohe. Under r 12.2 of the High Court Rules the court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no arguable defence to a cause of action in the statement of claim.

[2] Matters raised in the notice of opposition include these:

(a) The proceeding is an abuse of process or is outside the High Court’s jurisdiction as the Family Court is the only appropriate court to determine the matters in question and there is a pending application for similar orders in the Family Court.

(b)There are matters in dispute between the parties and the defendants have defences to the substantive proceeding. Among the points raised is that the heads of agreement document does not comply with the formal requirements of s 21F of the Property (Relationships) Act
1976.

(c) The court may set the agreement aside under s 21J of the Property

(Relationships) Act on the grounds of serious injustice.

(d)The relief sought is premature as the right to payment is conditional on the sale of the property called “the Lake Block” and the plaintiff has not fulfilled her obligations under the heads of agreement.

[3] The main questions are:

(a) Is the proceeding an abuse of process for duplication of proceedings?

(b) Are the heads of agreement enforceable?

Background

[4] The plaintiff and the first defendant were married on 29 August 1970. They separated on 17 April 2007. They were farmers at Rangiahua, between Horeke and Okaihau. Most of their assets were held in trusts and in a company. The first trust is the S L Edwards Family Trust. It was established in 1981. The trustees are the first defendant, a Kerikeri accountant, and a Kaikohe lawyer.1 The plaintiff and the first defendant…

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 Edwards v Edwards

Details

AGLC: Edwards v Edwards [2012] NZHC 1630
Case: [2012] NZHC 1630
Decision Date: 11 July 2012

CaseChat Overview and Summary

The plaintiff, Irene Anne Edwards, applied for summary judgment against the first defendant, Sidney Lucien Edwards, and others, seeking specific performance of heads of agreement made in a judicial settlement conference in the Family Court. The defendants opposed the application, raising issues of jurisdiction, the enforceability of the agreement, and the relief sought. The main legal issues were whether the proceeding was an abuse of process and whether the heads of agreement were enforceable. The court found that the proceeding was an abuse of process because it duplicated proceedings in the Family Court. The court also found that the heads of agreement were not enforceable because they did not comply with the formal requirements of the Property (Relationships) Act and were incomplete at common law. The court dismissed the application for summary judgment and directed the plaintiff to elect which court she would continue her claim in. The court also directed a telephone conference to arrange further case management directions and to hear any application for costs.

Orders