Gerring-Gunn v Gunn - [2023] NZHC 2603

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-136

[2023] NZHC 2603

UNDER the Property (Relationships) Act 1976

BETWEEN

ANNA MICHELLE GERRING-GUNN

Appellant

AND

STEVEN ALEXANDER GUNN

Respondent

Hearing: 30 August 2023

Appearances:

R P Sutton for appellant

MIS Phillipps and N Dennison for respondent

Date of judgment:

19 September 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 19 September 2023 at 1.00pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Richard Sutton, Barrister, Hamilton
Vicki Ammundsen Trust Law, Auckland

GERRING-GUNN v GUNN [2023] NZHC 2603 [19 September 2023]

[1] Anna Gerring-Gunn appeals against the decisions of Judge R H Paul in the Family Court at Hamilton on 2 May (and 29 August) 2022, declining to set aside her 19 April 2011 agreement with Steven Gunn as to the division of their property or hold the parties continued in a de facto relationship after dissolution of their marriage (and awarding him costs).1 As in the agreement, and meaning no disrespect, in this judgment I refer to the parties respectively as ‘Anna’ and ‘Steve’.

Background

[2] Anna and Steve married each other in New Zealand on 28 November 2003. They latterly lived together with their two children in the United Arab Emirates’ Abu Dhabi, where Steve was based as a pilot employed by the Emirates airline. On 19 April 2011, they entered into an agreement recording their date of separation as 30 March 2009 and setting out “the division of relationship property held by them at the date of separation … in full and final settlement of all or any claims which either party may have against the other” under the Property (Relationships) Act 1976.

[3] The agreement provided for equal division of net proceeds on sale of Anna’s and Steve’s newly constructed Abu Dhabi property they valued at $650,000 (but carrying $500,000 in borrowings) “as early as practicable”, pending which sale Steve could live at the property rent free on payment of all outgoings. Chattels were to be the sole and separate property of the party with possession, use or control of them. Vehicles and boats were to be retained by Steve, whose superannuation fund then valued at $150,000 and post-separation income was agreed his separate property.

[4] Cash on hand of some $30,000 was for equal division. Charged property obtained or retained under the agreement rendered that party “solely liable in respect of that debt” and indemnified the other against any claims or losses arising from that debt. Children were to be in Anna’s custody in New Zealand for Steve’s notified and non-interrupting access. Steve was to pay Anna $3,000 a month (net of tax) for their two children’s maintenance (then aged 6 and 8 years) until the younger turned 18 years old, and to meet the children’s schooling costs.

1 Gerring-Gunn v Gunn [2022] NZFC 4341 [substantive judgment]; Gerring-Gunn v Gunn [2022] NZFC 8193 [costs judgment].

[5] The agreement recorded…

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 Gerring-Gunn v Gunn

Details

AGLC: Gerring-Gunn v Gunn [2023] NZHC 2603
Case: [2023] NZHC 2603
Decision Date: 19 September 2023

CaseChat Overview and Summary

Anna Gerring-Gunn appeals against the Family Court decisions of Judge R H Paul declining to set aside her 19 April 2011 agreement with Steven Gunn on the division of their property and holding they did not continue in a de facto relationship after the dissolution of their marriage. The agreement provided for equal division of net proceeds on sale of their jointly owned property in Abu Dhabi, pending which sale Steve could live at the property rent free on payment of all outgoings. Vehicles and boats were to be retained by Steve, whose superannuation fund and post-separation income were agreed his separate property. Anna sought to set aside the agreement on the basis of inadequate legal advice and that the parties continued in a de facto relationship for another five years. The Family Court declined to set aside the agreement and found no continuing de facto relationship. The appeal to the High Court concerned whether the agreement was seriously unjust, whether a de facto relationship continued and whether costs were properly awarded.

The Court found the Family Court did not err in its assessment of the evidence and conclusions. The agreement was not as one-sided as contended and there was no independent evidence of the parties' joint liabilities. Anna sought the certainty conferred by the agreement. The Court found no basis to second-guess the Family Court's conclusion that the parties did not continue in a de facto relationship, as living together as a couple is more susceptible to trial than appeal assessment. The Court found the Family Court erred in its assessment of costs against Anna, as her unsuccessful appeal did not constitute exceptional circumstances justifying the award. However, Anna's appeal was upheld only on the issue of her liability for costs, with an order that but for her liability being affected by s 45 of the Legal Services Act 2011, she would have been ordered to pay $41,051.55 in costs and disbursements to Steve.

Orders