Starr v O'Meehan - [2017] NZHC 1889

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 NAPIER REGISTRY

CIV-2017-441-000001 [2017] NZHC 1889

UNDER
Section 39 of the Property (Relationships)

Act 1976 and section 72 of the District
Courts Act 1947

IN THE MATTER

of an appeal against a decision of the
Family Court

BETWEEN

ANITA STARR Appellant

AND

GARETH OʼMEEHAN Respondent

Hearing: 24 July 2017

Appearances:

DJ OʼConnor for Appellant
GRJ Thornton for Respondent

Judgment:

9 August 2017

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 9 August 2017 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
D O’Connor, Napier
Lunn & Associates, Napier
Charlile Dowling, Napier

STARR v OʼMEEHAN [2017] NZHC 1889 [9 August 2017]

Introduction

[1] In a reserved decision dated 6 December 2016, Judge AB Lendrum dismissed an application by the appellant to set aside an agreement she entered into with the respondent on 21 August 2002 to contract out of the provisions of the Property (Relationships) Act 1976 (“the agreement”).1 The appellant now appeals against the dismissal of her application. She says the Judge was wrong to uphold the validity of the agreement because she says that she only signed the agreement under duress or undue influence and/or the agreement is unfair or unreasonable.

Factual background

[2] The parties began their relationship during the first quarter of 2010. The appellant had two adult children from a previous relationship and the respondent had three minor children from his first marriage. The appellant worked for a bank and the respondent owned and operated a bakery business.

[3] In October 2010 the parties became engaged to be married. At that time, the appellant was living in a house at Fitzroy Avenue, Hastings (“the Fitzroy house”), which was owned by the Kilfeather Trust (“the Trust”). The Trust was settled by the appellant and her solicitors. In December 2010 the appellant moved into the respondent’s home. In May 2011, the Trust sold the Fitzroy house and the appellant received a distribution of approximately $100,000 from its sale.

[4] In June 2011 the appellant tendered her resignation to the bank because she was unable to reduce her work hours to become more available to the respondent and his children. Shortly thereafter, the appellant learnt that her job was to be made redundant. She therefore withdrew her resignation and on 26 July 2011 received a notice of redundancy. She left the employment of the bank in November 2011, having received a redundancy payment of $35,000.

[5] In January or February 2012 the respondent first raised the issue of a contracting out agreement. The respondent’s solicitor prepared a draft agreement,

1 Starr v O’Meehan [2016] NZFC 10394.

which was sent to the appellant’s solicitor in March 2012. The agreement was signed on 21 August 2012. It…

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.

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Details

Case: [2017] NZHC 1889
Decision Date: 9 August 2017

CaseChat Overview and Summary

In Starr v O'Meehan, the High Court considered an appeal against a Family Court decision that dismissed an application to set aside a contracting out agreement under the Property (Relationships) Act 1976. The appellant, Anita Starr, argued that the Family Court judge erred in upholding the validity of the agreement as it was signed under duress or undue influence and/or was unfair or unreasonable. The court rejected the appellant's argument that the judge made incorrect assumptions about domestic violence, stating that the judge applied the correct legal tests to determine if there was duress or undue influence. The court found that the process by which the agreement was drafted and signed was fully compliant with the procedural requirements of the Act and provided certainty concerning the parties' respective property interests. The appeal was dismissed, and the respondent was entitled to costs on a 2B basis.

The primary legal issue in this case was whether the contracting out agreement was valid and should be enforced by the court. The court had to determine whether the appellant signed the agreement under duress or undue influence and/or whether the agreement was unfair or unreasonable. The court examined the facts and circumstances surrounding the signing of the agreement, including the nature of the relationship between the parties, the process by which the agreement was drafted and signed, and the content of the agreement itself. The court also considered the legal tests for duress and undue influence and whether the agreement met the criteria for being set aside under the Property (Relationships) Act 1976.

Orders