O'Connor v Gnap - [2025] NZHC 1412

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-145

[2025] NZHC 1412

UNDER Section 39 of the Property (Relationships) Act 1976

BETWEEN

SIMON O’CONNOR

Appellant

AND

KATARZYNA GABRIELA GNAP

Respondent

Hearing: 27 May 2025

Appearances:

M Vickerman for Appellant

S Ambler and Ms Chong for Respondent

Judgment:

27 May 2025

ORAL JUDGMENT OF BECROFT J

Solicitors/Counsel:
J Thompson Law, Auckland Tompkins Wake, Auckland
M Vickerman, Barrister, Auckland

O’CONNOR v GNAP [2025] NZHC 1412 [27 May 2025]

The appeal and the preliminary application

[1] This is an appeal from a Family Court decision relating to relationship property.1

[2] The substantive appeal is not without complexity. The Family Court decision appealed against stretches to 269 paragraphs.

[3] The matter was set down for a one-day hearing today on the basis that there was a preliminary issue to deal with first. That issue was Mr O’Connor’s application to call “fresh” evidence in the form of a valuation of one of the three properties accepted to be relationship property. That property is 258 Birkdale Road. The valuation is from Opteon dated August 2023.

[4] For the reasons that I will later outline, it seems to me that the interests of justice require this information to be put before the Court. I have heard argument from both parties. The parties have discussed between themselves a way forward, given my indication as to the only basis upon which I would consider granting the application.

[5] I now set out what has been agreed between the parties, then I will set out my brief reasons.

Conditions upon which leave is granted

[6] Leave is granted to admit the valuer’s evidence (Opteon), on appeal, on the basis that Ms Gnap will necessarily be required to obtain her own valuation. There may also be the need for conferring between the valuers. And, if agreement as to valuation cannot be reached, then that issue will have to be decided in the Family Court and the matter returned to Judge Pidwell for that purpose.

[7] I grant leave in the unusual circumstances, that I will later set out, on the following basis:

1 Gnap v O’Connor [2024] NZFC 15541.

(a)Mr O’Connor accepts that he should, and will pay, Ms Gnap’s reasonable costs on indemnity for all her work for preparation, appearance and otherwise in connection with this hearing, including disbursements.

(b)Ms Ambler will provide that figure to Mr Vickerman within seven days.

(c)Mr O’Connor will pay that sum by 5pm Tuesday, 24 June 2025.

(d)Mr O’Connor will also pay the costs of Ms Gnap obtaining a valuer for the 258 Birkdale Road property as at August 2023. As I understand it, that will include both and an “as is” valuation and a “completed development” valuation.

(e)Mr O’Connor will also pay the costs of the two valuers conferring, should that be necessary.

(f)Those costs can be provided, when appropriate, to Mr Vickerman. They will be paid within one month of…

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 O'Connor v Gnap

Details

AGLC: O'Connor v Gnap [2025] NZHC 1412
Case: [2025] NZHC 1412
Decision Date: 27 May 2025

CaseChat Overview and Summary

Simon O'Connor appeals a Family Court decision regarding relationship property, which was contested in a 269-paragraph decision. The appeal hinges on the introduction of a new valuation for one of the three properties, 258 Birkdale Road, from Opteon dated August 2023. The High Court heard Mr O'Connor's application to present this "fresh" evidence after the Family Court had already considered an older valuation from July 2022. The court acknowledged that the interests of justice require this new information to be considered.

The court granted leave for the additional evidence to be introduced, subject to conditions. These include Mr O'Connor paying Ms Gnap's reasonable costs associated with the hearing, the costs for Ms Gnap to obtain her own valuation, and any costs for conferring between the valuers. Additionally, Mr O'Connor must pay an outstanding judgment sum of $139,473.00 to Ms Gnap by a specified date. If these conditions are not met, the leave to introduce the new evidence will lapse, and the appeal will proceed based on the evidence already before the Family Court. The court emphasised that any unresolved valuation issues should be decided by the Family Court, not the High Court.

The court found that the interests of justice necessitated the introduction of the new evidence, despite it not being fresh. The court relied on the principle that admitting further evidence on appeal is exceptional and should be based on compelling grounds. The court noted that if the new evidence is not introduced, it could result in an unjustified windfall for Ms Gnap. The court highlighted that while it is wrong in principle to allow additional evidence that was available at the lower court hearing, the circumstances here involved possible solicitor oversight rather than a change in tactics or strategy.

In conclusion, the court granted leave for the new valuation evidence to be introduced, subject to the outlined conditions. The court praised the parties for their collaborative approach and hoped it would lead to a resolution of the outstanding matters between them. The court made it clear that if the conditions were not met, the leave to introduce the new evidence would be revoked, and the appeal would proceed with the existing evidence.

Orders