McGregor v Berg - [2025] NZHC 2027

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2141

[2025] NZHC 2027

UNDER The Declaratory Judgments Act 1908, the Property Law Act 2007 and Part 18 of the High Court Rules 2016

IN THE MATTER OF

An application for discharge of mortgage D047795.5

BETWEEN

DEBORAH KATHLEEN MCGREGOR

Plaintiff

AND

BEVAN CHARLES BERG

Defendant

Hearing: 16 July 2025

Appearances:

S R Mitchell KC and S R J Hamilton for the plaintiff The defendant in person

Judgment:

22 July 2025

JUDGMENT OF BLANCHARD J

This judgment was delivered by me on 22 July 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar

Solicitors:
Hobson Chambers, Auckland
Michael Foley, Foley Hughes, Auckland

MCGREGOR v BERG [2025] NZHC 2027 [22 July 2025]

[1] Ms McGregor seeks an order discharging a mortgage registered against her property. The mortgagee is her husband, Mr Berg. They married in 1982. They separated in 1995 but remain legally married.

The property and the mortgage

[2] Ms McGregor is the registered proprietor of a property at 552 New North Road, Kingsland, Auckland. She lives at the property.

[3] Ms McGregor and Mr Berg bought the property together in 1988. They owned it as tenants in common and lived there together until their separation.

[4] In July 1996, Ms McGregor and Mr Berg entered into a relationship property agreement by which Ms McGregor agreed to pay Mr Berg $40,000 for his share in the property.

[5] Pursuant to the agreement, in September 1996, Mr Berg transferred his interest in the property to Ms McGregor. He also registered a mortgage against the title to the property to secure payment of the $40,000 debt. No interest was payable on the debt.

Repayment of the mortgage debt

[6] Ms McGregor was required to pay the $40,000 by 5 July 2006. She did not pay the debt by the due date. To enable her to make the payment, she applied to the Family Court seeking a lump sum payment of child support. As a result, on 8 June 2007, the Family Court ordered Mr Berg to pay $40,000 to Ms McGregor by way of lump sum child support. Ms McGregor’s position is that the effect of this order was to discharge her obligation to pay the $40,000 by way of set-off.

Overpayment of child support

[7] On 8 June 2007, the Family Court also directed that an actuary be appointed by the registrar to determine the length of time that Mr Berg should be exempt from child support on account of the $40,000 lump sum payment. The actuary determined that Mr Berg should be exempt from child support payment until 7 September 2013.

[8] Unfortunately, however, the Family Court did not enter judgment in respect of the actuary’s report. Consequently, the Inland Revenue Department continued to deduct child support from Mr Berg’s income and paid it to Ms McGregor when it should not have. Ms McGregor accepts that,…

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 McGregor v Berg

Details

AGLC: McGregor v Berg [2025] NZHC 2027
Case: [2025] NZHC 2027
Decision Date: 22 July 2025

CaseChat Overview and Summary

Deborah Kathleen McGregor, the plaintiff, applied for a discharge of a mortgage registered against her property, with Bevan Charles Berg, the defendant, being the mortgagee. The parties, who married in 1982 and separated in 1995 but remain legally married, jointly purchased a property in 1988. A relationship property agreement was executed in 1996, whereby Ms McGregor agreed to purchase Mr Berg's share in the property for $40,000, secured by a mortgage. Ms McGregor failed to pay the debt by the stipulated date, leading to a Family Court order in 2007 for Mr Berg to pay Ms McGregor $40,000 as lump sum child support, effectively discharging the debt. However, due to an oversight by the Family Court, Ms McGregor overpaid child support, resulting in a debt of $24,247.14 to Mr Berg, which she claims to be ready, willing, and able to repay, but he refuses to accept. Mr Berg contends that the mortgage should not be discharged as Ms McGregor owes him approximately $35,000, which includes the overpaid child support, interest, and costs. The court declined to grant leave to Mr Berg, ruling that the mortgage does not secure any money owed by Ms McGregor to Mr Berg, as it was a fixed sum mortgage. The court concluded that the mortgage should be discharged and ordered Mr Berg to deliver a discharge of the mortgage within 14 days or face a court-executed discharge. Additionally, Mr Berg was ordered to pay Ms McGregor's costs for the proceeding.

Orders