Korving v Korving - [2015] NZHC 152

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2960 [2015] NZHC 152

BETWEEN
GILLIAN IRENE KORVING

Plaintiff

AND

ANTHONY ROBERT KORVING and

GRAHAM JOHN GUNN Defendants

Hearing: 28 January 2015

Appearances:

JM Skinner for Plaintiff
Respondent in person, with Ms Boswell, lay person assisting

Judgment:

12 February 2015

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 12 February 2015 at 4:45 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

KORVING v KORVING [2015] NZHC 152 [12 February 2015]

Introduction and result

[1] Mrs Gillian Korving seeks by summary judgment to assert her rights as mortgagee of a property at 46 Flanagan Road, Drury (“the Drury property”), formerly the matrimonial home she shared with the first-named defendant, Mr Robert Korving. As a result of the settlement of Mr and Mrs Korving's respective rights under the Property (Relationships) Act 1976 (“the PRA”), the mortgaged property is now registered in the names of Mr Korving and the other trustee of his family trust.

[2] Mr Korving has defaulted in the payment of interest and the repayment of the principal sum of $75,000 secured by the mortgage. Mrs Korving wants the Court to order the sale of the Drury property and to direct that she be paid all outstanding interest, the principal sum and costs out of the proceeds of sale.

[3] Mr Korving does not dispute that interest and the principal sum are overdue in terms of the mortgage, but opposes the orders sought by Mrs Korving on the ground that he has applied to the Family Court to set aside the relationship property agreements, made under s 21 of the PRA, which give rise to the indebtedness. To succeed in that application he must satisfy the Court that giving effect to the agreements would cause serious injustice.

Result

[4] For the reasons given below, I have decided that:

(a) Mr Korving has no reasonable prospect of persuading the Family Court that giving effect to those provisions of the agreement which remain to be complied with would cause serious injustice and that the agreements should be set aside.

(b)It follows that Mr Korving has no defence to the plaintiff's claim for summary judgment.

(c) Mrs Korving is entitled to exercise her remedies under the mortgage, including the power of sale, and to recover the principal sum of
$75,000 and all interest, including penalty interest, due to the date of payment.

(d)However, implementation of the order for sale and recovery of the sums due shall be deferred for a short period to enable Mr Korving to satisfy his indebtedness and avoid the forced sale of the property.

The background

[5] Mr and Mrs Korving were married in 2008. The Drury property, worth

$1,180,000, was the primary item of relationship property. It was owned in equal shares by the parties' respective family trusts: the Robert Korving Family Trust and the GIPAME Family Trust. Mr and Mrs Korving were trustees of both trusts.

[6] Mr and Mrs Korving separated on…

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 Korving v Korving

Details

AGLC: Korving v Korving [2015] NZHC 152
Case: [2015] NZHC 152
Decision Date: 12 February 2015

CaseChat Overview and Summary

In Korving v Korving, Mrs Gillian Korving sought summary judgment to enforce her rights as the mortgagee of a property at 46 Flanagan Road, Drury, which was formerly her matrimonial home with Mr Anthony Korving. The property had been transferred to Mr Korving and the trustees of his family trust as a result of the settlement of their respective rights under the Property (Relationships) Act 1976. Mr Korving defaulted in his obligation to repay $75,000 secured by a second mortgage over the property, prompting Mrs Korving to seek an order for the sale of the property and payment of the outstanding sum from the proceeds of sale. Mr Korving opposed the application, arguing that he had applied to the Family Court to set aside the relationship property agreements, made under s 21 of the Property (Relationships) Act, which gave rise to the indebtedness, on the grounds that giving effect to those provisions of the agreement would cause serious injustice. The court held that Mr Korving had no reasonable prospect of persuading the Family Court that giving effect to the agreements would cause serious injustice and that the agreements should be set aside. The court found that the agreements were not ambiguous, that the delay in applying to set them aside was not significant, that there was no evidence that the agreements were unfair or unreasonable when they were made, and that the agreements had not become unfair or unreasonable since they were made. The court concluded that Mr Korving had no defence to the plaintiff's claim for summary judgment and that Mrs Korving was entitled to exercise her remedies under the mortgage, including the power of sale, and to recover the principal sum of $75,000 and all interest, including penalty interest, due to the date of payment. However, implementation of the order for sale and recovery of the sums due was deferred for a short period to enable Mr Korving to satisfy his indebtedness and avoid the forced sale of the property.

Orders