Ireland v Ireland - [2015] NZHC 1655

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000130 [2015] NZHC 1655

BETWEEN
PATRICIA ANN IRELAND

Plaintiff

AND

HAMISH ROBERT KAY IRELAND Defendant

Hearing: 15 July 2015

Appearances:

S N van Bohemen for Plaintiff/Counterclaim Defendant
(Applicant)
M J Wallace for Defendant/Counterclaim Plaintiff (Respondent)

Judgment:

15 July 2015

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on application for security for costs

The substantive litigation

[1] The plaintiff (Mrs Ireland) and defendant (Mr Ireland) were wife and husband. I have earlier refused Mrs Ireland summary judgment on her claims.1 In my earlier judgment, I explained the background to the litigation:

[1] Hamish Ireland (“Hamish”) and Patricia Ireland (“Trish”) were married in 1990 but separated in 2011. They had numerous interests in businesses and trusts. They had differences about ownership and control of property which led to almost two years of negotiation and litigation.

[2] Ultimately, on 22 May 2013, they were able to execute what they called a “Deed of Settlement of Relationship Property, Trust and Other Matters”, which they recorded to be in full and final settlement of their property claims. They agreed upon a number of transactions by which ownership of assets was to alter; some assets were to be realised; interests in trusts were to change; and debt was to be dealt with. Most transactions were to be settled by 31 May
2013. Two matters were to be dealt with by 7 November 2013.

1 Ireland v Ireland [2014] NZHC1432.

IRELAND v IRELAND [2015] NZHC 1655 [15 July 2015]

[3] The Deed contained ten “general provisions” – Hamish and Trish acknowledged that they had been unable to reach agreement on the extent and value of relationship property assets; they considered the terms of the Deed fair and reasonable based on their own assessment as to the value of relationship and other property; and they wished to achieve certainty and settlement of their differences about ownership and control of property. They acknowledged and agreed, notwithstanding any legal advice to the contrary, that they wished to sign and be bound by the terms of the Deed, with neither subsequently to seek to void the Deed for lack of proper or inadequate advice.

[4] It is common ground that Hamish and Trish have completed most of the transactions agreed to in the Deed. But the hope of certainty and settlement of all differences has not been fulfilled.

[2] After I refused summary judgment, both parties amended their pleadings. I have recently ordered by consent the consolidation of two proceedings, namely Mrs Ireland’s proceeding and a separate proceeding commenced by Mr Ireland in the Family Court pursuant to the Property (Relationships) Act 1976, subsequently transferred to this Court.

[3] Mrs Ireland seeks to enforce the Deed. She seeks specific orders in relation to three obligations:

(a) an order that Mr Ireland transfer a property and assign the EQC and insurance benefits to her;

(b) an order that Mr Ireland repay a debt of $80,000; and

(c) an order that Mr Ireland indemnify her in…

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 Ireland v Ireland

Details

AGLC: Ireland v Ireland [2015] NZHC 1655
Case: [2015] NZHC 1655
Decision Date: 15 July 2015

CaseChat Overview and Summary

The High Court of New Zealand heard an application by Patricia Ann Ireland against Hamish Robert Kay Ireland regarding the enforcement of a settlement deed. The former spouses had executed a "Deed of Settlement of Relationship Property, Trust and Other Matters" in 2013, intended to fully and finally settle their property claims. Despite completing most of the transactions agreed upon in the deed, the spouses had not achieved the intended certainty and settlement. Patricia sought to enforce the deed, requesting specific orders for property transfer, debt repayment, and indemnification. Hamish filed a defence and counterclaim, seeking a stay on enforcement and damages for breach, as well as an application to set aside the deed under the Property (Relationships) Act 1976. Patricia applied for security for costs, arguing that Hamish might be unable to pay if unsuccessful on his counterclaim. The court considered whether the application for security was appropriate given the interconnected nature of the claims and counterclaims, which both stemmed from the same deed. The court found that the counterclaim was substantively a defence to Patricia's claims, and thus, it would not be just to order Hamish to give security for costs. Consequently, Patricia's application for security was dismissed, and she was ordered to pay the costs of the security application.

The court's decision was based on the closely interconnected nature of the claims and counterclaims, which both stemmed from the same Deed. The court found that Hamish's counterclaim, while legally framed as such, was substantively a defence to Patricia's enforcement of the Deed. Given this, the court held that it would not be just to order Hamish to provide security for costs, as both parties' claims and counterclaims needed to proceed without financial impediment. Therefore, Patricia's application for security for costs was dismissed, and she was ordered to pay Hamish's costs of the security application.

Orders