O'Connor v Gnap
[2025] NZHC 1412
•27 May 2025
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 their receipt by him.
(g)It has also emerged that Mr O’Connor has not paid any of the judgment sum set out in the Family Court judgment. Mr Vickerman responsibly accepts that even if Mr O’Connor were to be successful on appeal, he would still be required to pay $139,473.00. It is agreed, and therefore I order, that amount is to be paid to Ms Gnap by 5pm Tuesday, 24 June 2025.
[8] These conditions for granting leave were agreed between the parties, when I adjourned the hearing to enable discussion to take place.
[9] That might be considered an unusual step. However, in terms of the justice of the case, the delays that will be involved in obtaining this additional valuation evidence, any conferencing, and perhaps any resolution required by the Family Court, mean that this is, in my view, just and fair to Ms Gnap. Mr O’Connor, through Mr Vickerman, again responsibly accepts this.
[10] On that basis, the leave is granted. But I make clear that if there is any breach of those conditions, then the leave lapses and the appeal proceeds, as is, on the evidence currently before the Court.
[11] I add that if there is not satisfactory agreement between the valuers—that is satisfactory to the parties—then it will not be appropriate for this Court to resolve that difference of opinion. That would turn this Court into a “first instance decision- maker”, when that is the role of the Family Court. So, in the absence of satisfactory agreement, that issue would have to be returned to the Family Court for a decision.
[12] While costs in that court are, of course, entirely the province of the Family Court, my strong view, given what I have outlined already, is that costs for that additional hearing should be borne by Mr O’Connor. But that will be a decision for the Family Court.
Reasons
What happened
[13] I now turn to the reasons for granting Mr O’Connor’s application. I summarise them only briefly. I do so only briefly because it seems to me that both counsel have responsibly accepted that the interests of justice requires this step. While Ms Gnap would prefer to have the appeal resolved today, she also accepts the need to do justice in this case between the parties.
[14]There are three different properties accepted to be relationship property.
[15] The first is 29A Tonkin Drive for which there was a September 2022 and an August 2023 valuation. The August 2023 valuation was adopted by the District Court Judge as it was, amongst other things, closer to the hearing date.
[16] The second property is 37 Juniper Road. There was an October 2022 valuation and an August 2023 valuation. Again, the August 2023 valuation was adopted.
[17] For 258 Birkdale Road, there was only one valuation before the court, from Opteon, dated July 2022—that is 13 months before the valuations adopted for the two other properties. Consequently, that was the valuation adopted.
[18] However, it seems clear that Mr O’Connor also had a second valuation from Opteon for the Birkdale Road property, dated 25 August 2023. That is the valuation he seeks leave to introduce in evidence. It can immediately be seen that was available at least 13 months before the eventual substantive hearing which took place between 16–20 September 2024.
[19]I am uncertain as to exactly why that valuation was not introduced in evidence.
[20] Mr Vickerman mounts Mr O’Connor’s application on the basis that, in the end, Mr O’Connor’s then lawyer had the valuation and, at least, had it on 6 September 2024. His former lawyer says as much in a letter to Mr O’Connor that he appended to his supporting affidavit. In that letter, his former lawyer records Mr O’Connor’s understanding that the lawyer previously said to him “that it was too late to produce the valuation given that it was over a year old at the time, and you had not previously put it before the court.”
[21] The lawyer, in her letter, says she does not recollect having that conversation in respect of the valuation. She said she did not see the email attaching the valuation on 6 September 2024 and therefore did not see or know of the valuation. Had she done so, she says in her letter, “I would have attempted to produce it at the court hearing although it is not clear that a Judge would have been willing to accept it at such a late stage”. That is certainly a true observation. No doubt, Ms Ambler would have resisted its introduction at that time.
[22] Ms Ambler is also right to submit that, it would seem, Mr O’Connor and/or his lawyer had plenty of opportunity to introduce the valuation in evidence well before the hearing. There is also an email of 8 September 2023 which has been partially redacted, but not effectively redacted because it can still easily be read. It is an email from Mr O’Connor to his former lawyer where he says, “the valuation that he had got for Birkdale Road is a circa 15 per cent reduction". What was attempted to be
redacted, but which is very clear, are the words which follow “up to John and you whether we disclose this strategically or not”.2
[23] Not surprisingly, Ms Ambler opposed the application on the basis that it smacked of a “change of approach or an adoption of different tactics” that may have been strategically adopted by Mr O’Connor’s previous lawyer.
[24] However, I am far from sure whether this was the case or not. What I do have is a letter signed by the lawyer saying she had no knowledge of the valuation and had not seen it before she received it on 6 September 2024—when it seems it had been brought to her attention over a year earlier.
[25] On that basis, there may have been solicitor oversight. It would be unfair for Mr O’Connor to be prejudiced and deprived of the chance to have what would seem to have been relevant and important information put before the Family Court. Indeed, Mr Vickerman in his view, said somewhat bluntly (and this is still to be tested), that if the valuation from Opteon that Mr O’Connor wishes to admit is not admitted, it will result in an unjustified windfall for Ms Gnap of at least $400,000. That remains to be seen.
[26] It would have been preferable for the lawyer originally acting for Mr O’Connor to have provided an affidavit. Rather than insist that should happen, it seems to me on one analysis—that is Mr Vickerman’s analysis—there is a clear basis for concluding there may have been lawyer oversight in this matter and not a change of tactics or strategic approach.
2 During the hearing, Mr Vickerman advised that he had redacted this part of the email for relevance but had no concerns that the material was made known in court for this application. This is what Ms Ambler had originally sought. Implicit in all of that is that privilege was waived for that redacted part of the email, and I proceeded on that basis. As it happened, Mr O’Connor’s former lawyer wrote that she had never seen the valuation nor was aware it. I record that I did not rely on the originally redacted information.
Legal principles applied
[27] The legal principles for granting leave are well known.3 They are set out perhaps most recently in B v A,4 where Wylie J listed eight relevant principles. Mr Vickerman referred to Coory v Coory5 and also, as did Ms Ambler, Nation v Nation.6
[28] In terms of the legal principles, the cases all say much the same thing and, in my view, are neatly encapsulated by Wylie J in B v A. But their faithful application must inevitably result, in my view, in the decision I have made but with the conditions attaching that I have already explained.
[29] The first of the B v A principles which I rely on is the interests of justice. Here, in my view, given these unusual facts, that principle must prevail.
[30] I accept that it is wrong in principle to allow an appellant to bolster his or her case with additional evidence that was plainly available at the lower court hearing. And admitting further evidence is exceptional rather than routine. For instance, a change of heart about how a case should have been run will not suffice. But I am not sure that this is the position here. As Mr Vickerman has argued, at least on one analysis, there has been solicitor oversight.
[31] Also, the proposed evidence, generally, must be fresh, credible and cogent. It is not fresh here, but it is credible and cogent. But the reason why it is not fresh, at least on one analysis of the facts, has nothing to do with Mr O’Connor. And it would prejudice him if it were not introduced. In any case, the absence of “freshness” is not an absolute disqualification. These applications involve intensely fact specific analyses, and the grounds must be compelling.
3 Applications for leave to introduce further evidence on appeal are governed by s 39(3) and s 39B(3) of the Property (Relationships) Act 1976 and r 20.16 of the High Court Rules 2016.
4 B v A [2020] NZHC 580, at [25].
5 Coory v Coory HC Auckland CIV-2008-404-4431, 14 November 2008.
6 Nation v Nation [2005] 3 NZLR 46 (CA) at [165].
Conclusion
[32] In this case, although the standard to be met is rightly high, in my view, it is met. But, of course, there must be justice to both sides. And that is why I have set out the conditions upon which leave is granted. In my view, they ensure that justice is done between the parties and will ensure that this matter will be ready for appeal on a basis that is fair to all.
[33] I compliment the parties, Ms Gnap and Mr O’Connor, for their approach to resolving this issue of the additional evidence. I hope it paves the way for a resolution of the outstanding matters between them.
[34] I end by making crystal clear to Mr O’Connor that if those conditions are not met, then the leave to grant the one further valuation expert’s evidence will lapse. The appeal will then proceed on the basis of the evidence that was before the Family Court Judge.
[35] When all the issues surrounding the introduction of this additional evidence have been resolved, the parties can advise the Registrar. This appeal can then be rescheduled—but without this preliminary matter.
Becroft J
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