Ireland v Ireland - [2014] NZHC 1432

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000130 [2014] NZHC 1432

BETWEEN
PATRICIA ANN IRELAND

Plaintiff

AND

HAMISH ROBERT IRELAND Defendant

CIV-2014-409-000224

BETWEEN JIGSAW PRESCHOOLS LIMITED Applicant

ANDNEW ZEALAND CHILDCARE CENTRES LIMITED Respondent

Hearing: 17 June 2014

Appearances:

S N van Bohemen for Plaintiff and Applicant
M J Wallace for Defendant and Respondent

Judgment:

25 June 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE on summary judgment application and application to set aside statutory demand

Introduction

[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

IRELAND v IRELAND [2014] NZHC 1432 [25 June 2014]

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.

[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.

These two proceedings

The summary judgment proceeding

[5] Trish alleges that Hamish has not met three sets of obligations under the Deed. In the CIV2014-409-000130 proceeding she seeks summary judgment in relation to those obligations.

The statutory demand proceeding

[6] Through the Deed, Hamish and his trust were to obtain control of New Childcare Centres Limited (NZCC), the respondent in the CIV-2014-409-000224 proceeding. Trish was to retain control of Jigsaw Preschools Limited (“Jigsaw”), the applicant in the statutory demand proceeding. After Trish issued the summary judgment proceeding, Hamish had NZCC issue a statutory demand against Jigsaw

for three sums which NZCC claimed as debts owed by Jigsaw. Jigsaw applies to set aside the statutory demand upon the basis that there is a substantial dispute as to whether it is indebted to NZCC and…

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.

Keep reading for free

Create a free CaseChat account to read Ireland v Ireland and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 1432
Decision Date: 25 June 2014

CaseChat Overview and Summary

Patricia and Hamish Ireland were married in 1990 and 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. Ultimately, on 22 May 2013, they executed 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. Trish Ireland applied for summary judgment in relation to three sets of obligations which she alleged Hamish had failed to meet under the Deed. She also sought an order setting aside a statutory demand issued by Hamish's company, New Zealand Childcare Centres Limited, against her company, Jigsaw Preschools Limited. The statutory demand was for sums said to be due by way of rental, rates and insurance. In relation to the summary judgment application, the Court found that the application must fail in the exercise of the Court’s discretion. In relation to the statutory demand, the Court found that it must be set aside as the right to demand payment belonged not to Hamish’s company but to the landlord, and that to allow the statutory demand to proceed would be plainly unjust. The Court reserved costs.

Orders