Marston v Moor - [2013] NZHC 2249

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 HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-004221 [2013] NZHC 2249

BETWEEN MARSTON Plaintiff

ANDMOOR Defendant

Hearing: 11 - 21 February 2013

Counsel: J H Hunter & J I Hawker for Plaintiff
D R I Gay for Defendant

Judgment: 30 August 2013

JUDGMENT OF KEANE J

This judgment was delivered by on 30 August 2013 at 5pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors:
Walker Associates, Auckland
A C Wright, Auckland

MARSTON v MOOR [2013] NZHC 2249 [30 August 2013]

[1] In late July 1998 Ms Marston and Dr Moor1 entered into an agreement recording that they had been living in a de facto relationship for several years; that they had entered the relationship with independent property and means; that they wished to keep their property separate then and in the future, and that they wished to contract out of any then impending extension of the Property (Relationships) Act
1976 to de facto couples.

[2] In October 2009, when they separated finally, their agreement remained in effect, despite the fact that property rights in de facto relationships had become subject to the statutory relationship property regime on 1 August 2001. It states that any agreement entered into before that date governing the status, ownership or division of property, whether existing or in the future, was to remain in effect, as if there had not been that change to the law.

[3] That statutory presumption assumes, however, that the agreement entered into was and remains valid, according to the ordinary principles of contract law; and the agreement Ms Marston and Dr Moor entered into, she contends, is invalid because she entered into it unwillingly and to her disadvantage as the direct result of Dr Moor’s duress or undue influence; and that, as he knew and took advantage of, she was then so vulnerable that the agreement has to be set aside as unconscionable.

[4] Dr Moor contends in response that Ms Marston entered the agreement of her own free will and that they had affirmed it in 2001 and 2007 when they took advice as to its effect. Throughout their relationship, he contends, they adhered to the agreement. They kept their property separate or held it through companies or in defined shares. She affirmed it in that way also. Ms Marston, he contends, has delayed bringing this case. Though they separated in September 2009, she did not apply until 2010. The agreement stood unchallenged for some 12 years.

[5] As I shall say in a moment, the 1998 agreement is simple enough in concept, but the issue whether it was vitiated from the outset could not be more completely disputed. Ms Marston and Dr Moor disagree as to when they began their relationship
together, what its character was,…

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 Marston v Moor

Details

AGLC: Marston v Moor [2013] NZHC 2249
Case: [2013] NZHC 2249
Decision Date: 30 August 2013

CaseChat Overview and Summary

The case of Marston v Moor involves a dispute over the validity of a property agreement entered into by the parties, Ms Marston and Dr Moor, in 1998. The agreement aimed to contract out of any impending statutory property rights for de facto couples. Ms Marston seeks to have the agreement declared invalid, arguing it was entered into under duress, undue influence, or in an unconscionable state of vulnerability. Dr Moor contends that the agreement was validly entered into and that Ms Marston has affirmed it over the years. The court must decide whether the agreement is invalid based on the claims of duress, undue influence, or unconscionability.

The court first examines the legal principles surrounding duress, undue influence, and unconscionability. Duress involves illegitimate pressure leading to a lack of genuine consent. Undue influence requires a relationship of trust and confidence leading to exploitation. Unconscionability involves an imbalance of power and exploitation of a special disadvantage. The court then applies these principles to the facts of the case, including the circumstances under which the agreement was entered into and the nature of the relationship between the parties.

The court finds that Ms Marston entered into the agreement to preserve her relationship with Dr Moor and that she knew generally what she was agreeing to, despite not receiving full independent advice. The court also finds that Ms Marston adhered to the agreement in their property relationship and that in 2007, having taken full informed legal advice, she affirmed the agreement. The court concludes that Ms Marston did not enter into the agreement under duress, undue influence, or in a state of particular vulnerability that would render the agreement unconscionable. Therefore, the court declines Ms Marston's application for a declaration that the agreement is invalid. Dr Moor is awarded costs.

The final orders of the court are that Ms Marston's application for a declaration that the 1998 agreement is invalid is declined, and Dr Moor is awarded costs. If Dr Moor raises any issue of principle regarding the scale of costs, he must file a memorandum within 10 working days of the date of this decision, and Ms Marston must respond within the ensuing 10 working days. Otherwise, the award of costs is for the Registrar to confirm, as are any disbursements.

Orders