M v H - [2017] NZHC 2968

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-318 [2017] NZHC 2968

UNDER the Family Proceedings Act 1980

IN THE MATTER

of the Property (Relationships) Act 1976

BETWEEN

M Appellant

AND

H Respondent

Hearing: 29 November 2017

Counsel:

T J Rainey for Appellant/Applicant
S Jefferson QC for Respondent

Judgment:

1 December 2017

JUDGMENT OF BREWER J

Thisjudgment was delivered by me on 1 December 2017 at 1:00 pm pursuant to Rule 11.5 High Court Rules.

Solicitors:

Registrar/Deputy Registrar

Rainey Law (Auckland) for Appellant/Applicant
Haigh Lyon (Auckland) for Respondent

M v H [2017] NZHC 2968 [1 December 2017]

[1] Ms M applies for leave to appeal to the Court of Appeal my Judgment delivered on 29 September 2017.1 Since this would be a second appeal, leave is required.2

[2] The grounds on which leave to appeal are sought have been reduced and refined. In my Judgment, I held that the Deed of Agreement as to Present and Future Property entered into between Ms M and Mr H on 27 June 2000 survived their marriage pursuant to ss 21O(b), 21P and 21R of the Property (Relationships) Act 1976 (“the PRA”).3 Mr Rainey submits:

5.The issue is whether, under the [Matrimonial Property Act 1976], an agreement between de facto partners as to the status and ownership of property would have the effect of contracting out of the property sharing regime established under the MPA in the event that those parties were to subsequently marry?

6.On that issue the Court was confronted with what it took to be two conflicting High Court decisions: N v N [1999] NZFLR 481 and A v R [2007] 2 NZLR 399. The Court preferred N v N and held that the agreement determined the rights and interests of the parties after they married notwithstanding the finding that the agreement was not a valid contracting out agreement under Section 21 of the MPA or Section 21 of the PRA.

[3] Mr Jefferson QC for Mr H opposes the granting of leave on the basis that there is no conflict of judgments of this Court to be resolved, particularly having regard to the decision of the Court of Appeal in Moor v Marston.4

[4] The circumstances in which it would be appropriate for me to grant leave to appeal are summarised in Waller v Hider:5

These proceedings under the Matrimonial Property Act 1976 began in the Family Court. The appellant husband was largely unsuccessful in his appeal to the High Court. He then applied to that Court pursuant to s 67 of the Judicature Act 1908 for leave to bring a second appeal to this Court. Fraser J declined leave. As he said, the test is well established. The appeal must…

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 M v H

Details

AGLC: M v H [2017] NZHC 2968
Case: [2017] NZHC 2968
Decision Date: 1 December 2017

CaseChat Overview and Summary

This case involved a legal dispute between Ms M and Mr H, concerning the interpretation and application of the Property (Relationships) Act 1976, specifically the effect of a Deed of Agreement entered into by the parties while in a de facto relationship on their respective property rights following their marriage. Ms M sought leave to appeal the previous decision of Brewer J, which held that the Deed of Agreement survived their marriage and determined their property rights, despite it not being a valid contracting out agreement under the Act. The appeal hinged on the interpretation of the Act and whether the Deed of Agreement could govern the parties' property rights post-marriage.

The legal issue before the court was whether an agreement between de facto partners concerning the status and ownership of property would remain binding after the parties subsequently married. This issue arose from conflicting decisions in N v N and A v R, with the lower court having preferred the former. The court had to determine whether the agreement, executed before the parties' marriage, could govern their property rights post-marriage under the Property (Relationships) Act 1976.

Brewer J granted leave to appeal, reasoning that the issue of whether a pre-marriage property agreement remains binding after the marriage was one of public or general importance. The court found that the conflicting decisions in N v N and A v R presented a matter capable of bona fide and serious argument. The Court of Appeal's decision in Moor v Marston did not resolve the issue as it did not address the impact of marriage on the parties' agreement. While the court acknowledged the statutory language was clear and did not suggest that marriage altered the de facto agreement, the conflicting authorities warranted further examination. The court ultimately decided to grant leave to appeal to resolve the conflicting High Court decisions.

This decision underscores the importance of resolving conflicting judicial interpretations concerning the application of the Property (Relationships) Act 1976 to de facto property agreements and their effect post-marriage. The court granted leave to appeal to clarify the law in this area, allowing for a higher court to address the conflicting authorities and provide authoritative guidance on the matter.

Orders