Kinder v Carter - [2018] NZHC 319

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000679 [2018] NZHC 319

BETWEEN
C A KINDER

Plaintiff

AND

P M CARTER Defendant

Hearing: 26 February 2018

Appearances:

P F Whiteside QC for Applicant (Defendant) S N van Bohemen for Respondent (Plaintiff)

Judgment:

5 March 2018

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on strike out application

Introduction

[1] The parties lived together in a de facto relationship until 16 October 2016. On

16 March 2016, they had entered a contracting out agreement (the agreement) under s 21 Property (Relationships) Act 1976 (the Act). It was the third such agreement between them. It is common ground that the agreement binds the parties.

[2] Since their separation, the parties have come to have a number of differences relating to property matters.

This proceeding

[3] The plaintiff, Cheryl Kinder, sues the defendant, Philip Carter, in relation to four property matters. By her statement of claim:

KINDER v CARTER [2018] NZHC 319 [5 March 2018]

(a) Ms Kinder seeks an order of specific performance requiring Mr Carter to execute an agreement document prepared for Ms Kinder and signed by her on 27 July 2017. This document is stated to be an agreement entered into pursuant to s 21A of the Act. It would deal with the other three components of Ms Kinder’s claims as pursued in this proceeding, namely funds held in a solicitor’s trust account representing:

(i) the proceeds of sale of the family home (clause 4.1);

(ii)the Porsche motor vehicle retained by Ms Kinder and funds held in the parties’s joint bank account (clauses 3.1 and 5.1); and

(iii) other family chattels (clause 3.1).

(b)Ms Kinder seeks an order that the family home sale proceeds held in the solicitor’s trust account be paid in equal shares to the parties;

(c) Ms Kinder seeks a setting off of what she asserts to be the value of property receipts of each party – $19,200 transferred by Mr Carter from the parties’s joint account to his personal account; $29,000 representing the value of the Porsche retained by Ms Kinder; and $873.02 representing the outgoings on the family home incurred by Ms Kinder while in exclusive occupation. Ms Kinder then seeks an order that the funds held in the parties’s joint bank accounts be paid equally to the parties subject to a deduction of $20,273.02 from Ms Kinder’s share and an increase of $20,273.02 to Mr Carter’s share.1

(d)Ms Kinder seeks an order that relationship property family chattels (defined in the agreement) be sold by public auction at the shared cost of the parties and that the net proceeds of sale be distributed to the
parties equally.

1 The adjustment of $20,273.02 identified in the Statement of Claim differs from the adjustment figure identified in Ms Kinder’s 27 July 2017 (s 21A) agreement document by reason of further adjustments brought into account by Ms Kinder.

The strike out application

[4] Mr Carter applies for orders striking out Ms Kinder’s…

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 Kinder v Carter

Details

AGLC: Kinder v Carter [2018] NZHC 319
Case: [2018] NZHC 319
Decision Date: 5 March 2018

CaseChat Overview and Summary

Cheryl Kinder and Philip Carter, who were in a de facto relationship, entered into a contracting out agreement under the Property (Relationships) Act 1976. After their separation, disputes arose over property matters. Kinder filed a lawsuit against Carter seeking specific performance of an agreement, distribution of proceeds from the sale of their home and other assets, and an equal division of family chattels. Carter filed an application to strike out Kinder's statement of claim, arguing that the matter should be heard in the Family Court and not the High Court.

The court had to determine whether Kinder's application was an abuse of process and whether the High Court had jurisdiction to hear the matter. The court noted that under section 21L of the Act, the High Court has jurisdiction to enforce agreements made under section 21 of the Act. The court held that Kinder's claims were focused on enforcing the provisions of the section 21 agreement and were therefore within the jurisdiction of the High Court. The court also held that Carter had not discharged the onus of establishing that Kinder's application was an abuse of process.

Accordingly, the court dismissed Carter's application to strike out Kinder's statement of claim and ordered that the costs of the application be fixed on a 2B basis. The incidence of costs and disbursements was reserved, with submissions to be filed by both parties.

Orders