K v K - [2022] NZHC 1301

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-15

[2022] NZHC 1301

BETWEEN
K

Appellant

AND

K

Respondent

Hearing: 30 May 2022

Counsel:

D J Patterson and M W Denton for Appellant C J Nicholls for Respondent

Judgment:

2 June 2022

JUDGMENT OF SIMON FRANCE J

Background

[1] The appellant and the respondent separated in 2013. Following a settlement conference, a division of the relationship property was agreed. The settlement was given effect by Relationship Property Orders made by the Family Court and sealed on 9 June 2014.

[2] The couple owned a home which was subject to a mortgage. At the time of the settlement the couple had no equity in the property given the size of the borrowings. The agreement reached was:

K v K [2022] NZHC 1301 [2 June 2022]

(a)Ms K had three months to effectively refinance the property so as to release Mr K from his obligations. If this occurred the house would be hers;

(b)if that did not occur, Mr K “at his discretion” could obtain an order for sale. Any surplus was to be divided equally. Any shortfall was to be met by Ms K. Mr K assumed responsibility for paying off another debt owed to a finance company. It is common ground Ms K could also initiate a sale at any time;

(c)pending sale Ms K was to meet all outgoings.

[3] Ms K did not arrange for Mr K’s obligations to be discharged. She has remained in possession of the house since settlement, occasionally living there but for a four-year period renting it out. Mr K in late November 2021 exercised his rights under the agreement for the house to be sold, and the Family Court issued that order.

[4] The making of the order had been opposed, but at the hearing Ms K accepted Mr K was entitled to half the equity. However, she sought time to be able to buy him out. The Court allowed seven days for discussions following which the order was to be made.1

[5] No agreement was reached between the parties and the order was made on 22 November 2021 and sealed on 16 December 2021. Ms K seeks to appeal.

Proposed appeals

[6] Ms K first seeks to appeal the 2021 decision making the sale order. Leave to appeal out of time (five days) is sought. It is opposed on the basis that the appeal is submitted to be hopeless, but not otherwise. Given the short period involved, leave to appeal is granted as is leave to both parties to file their affidavit evidence.

1 K v K [2021] NZFC 11752.

[7] The appeal is brought on the basis that Mr…

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 K v K

Details

AGLC: K v K [2022] NZHC 1301
Case: [2022] NZHC 1301
Decision Date: 2 June 2022

CaseChat Overview and Summary

In the High Court of New Zealand, K sought to appeal against a Family Court decision that ordered the sale of a property that she and her former spouse, Mr K, had owned jointly. The appeal sought to vary the terms of a 2014 Family Court order that had divided the property between the parties. Ms K argued that Mr K had promised her that he would not exercise his right to sell the property, and that she had relied on that promise to her detriment. She sought an extension of time to refinance the property and argued that the Family Court had erred in ordering the sale. The court was required to decide whether there had been a variation of the original agreement or whether estoppel by representation applied to prevent Mr K from exercising his sale option.

The court found that Ms K had failed to establish the elements required for either a variation of the original agreement or estoppel by representation. It held that Mr K's statement that he did not want anything from the property did not amount to a representation that he was forgoing his half share or his right to trigger the sale. The court found that there was no agreed variation, nor was there conduct that could reasonably be interpreted as Ms K claimed. The court also found that Ms K had not altered her position as a result of the alleged representation. The court dismissed the appeal and declined to grant leave to appeal the 2014 consent judgment.

The court held that the 2014 agreement had not been varied by the parties and there had been no representations made by Mr K that could found an estoppel. There had been no reliance and detriment on the part of Ms K. The court also declined to grant leave to appeal the 2014 consent judgment on the basis of the principle of finality. The court held that there was no sound explanation for a delay of eight years in bringing the appeal and declined leave to appeal out of time.

Orders