W v W - [2024] NZHC 1315

NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF RESPONDENT REMAINS IN FORCE

FAMILY COURT ORDERS PROHIBITING THE PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF CERTAIM LEGAL ADVISERS OF THE PARTIES AND/OR TWO DECEASED PERSONS, AND HIGH COURT ORDERS PROHIBITING PUBLICATION OF THE NAMES AND IDENTIFYING PARTICULARS OF ALL THE PARTIES’ FORMER REPRESENTATIVES, PENDING FURTHER ORDER OF THIS COURT, REMAIN IN FORCE

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2015-416-40

[2024] NZHC 1315

IN THE MATTER OF the Property (Relationships) Act 1976

BETWEEN

W

First Applicant

AND

MR W and MC TRUSTEES (NO 2)

LIMITED as trustees of the MR W TRUST Second Applicant

AND

W

Respondent

Hearing: 16 April 2024

Appearances:

First Applicant in person

J R Hosking for the Respondent K I Murray as Counsel assisting

Judgment:

23 May 2024

JUDGMENT OF PALMER J

Counsel/Solicitors
J R Hosking, Barrister, Rotorua Lance Lawson, Mt Maunganui
K I Murray, Barrister, Wellington

W v W [2024] NZHC 1315 [23 May 2024]

What happened?

[1] In 2006, Mr and Mrs W’s relationship ended and they reached a mediated agreement on the distribution of their relationship property (the 2006 Agreement). Their marriage was dissolved in 2008.

[2] In May 2009, Mrs W applied to set aside the 2006 Agreement, including on the basis that she had entered it under duress because of physical and sexual abuse she had suffered from Mr W throughout their relationship. One of the documents Mrs W adduced as evidence in support of her claim was an ACC report form, which she had altered.

[3] Mr W applied to strike out Mrs W’s application to set aside the 2006 Agreement, including on the basis that Mrs W had committed perjury in altering the ACC report form. In February 2011, before the strike-out application was heard, the parties entered a further mediation agreement (the 2011 Agreement). That led to Mrs W’s application being discontinued. Mr W has subsequently asserted that the advice he was given by his counsel in respect of the 2011 Agreement was wrong and negligent.

[4] In September 2011, Mr W applied out of time to the Family Court to set aside the 2011 Agreement and to vary the 2006 Agreement. He was advised by another counsel. His application to set aside the agreement included a claim that Mrs W’s alteration of the ACC form was a criminal offence and fraud. On 15 June 2015, in the Family Court, Judge Callinicos concluded the 2011 Agreement was unfair to Mr W, significantly due to inadequate advice he received and set aside the 2011 Agreement.1 The Judge found the 2006 Agreement was also unfair to Mr W and he set that aside too, made adverse findings against Mrs W, and referred the altered document to the Police for consideration of a perjury charge.2 Mr W now says his counsel at that time was responsible for false affidavit evidence being filed about his mental health…

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 W v W

Details

AGLC: W v W [2024] NZHC 1315
Case: [2024] NZHC 1315
Decision Date: 23 May 2024

CaseChat Overview and Summary

The High Court considered Mr W's application for leave to appeal against the High Court's decision to remit the property distribution case between him and his former spouse, Mrs W, back to the Family Court for retrial. This case arose from the parties' 2006 and 2011 mediated agreements regarding the distribution of their relationship property. After a Family Court hearing in 2015, the Judge concluded that the 2011 Agreement was unfair and set it aside, and referred the matter to the Police for consideration of perjury charges against Mrs W. However, the High Court found that the Family Court hearing was unfair and set aside the Family Court's decision, remitting the matter back to the Family Court for retrial.

Mr W sought leave to appeal the High Court's decision to the Court of Appeal. He argued that the High Court's decision was a miscarriage of justice because it did not consider crucial evidence that he claimed supported Mrs W's perjury and misconduct by his former counsel. Mrs W opposed the application, stating that the issues raised by Mr W regarding his former counsel's conduct and his mental state during the 2011 mediation should be addressed in the retrial. Counsel assisting the Court also submitted that the proposed appeal was unlikely to succeed and that the best course was to proceed with the retrial.

The High Court held that leave to appeal should not be granted. The Court of Appeal would only be able to address the issue of whether the Family Court Judge's conduct rendered the hearing unfair, which Mr W did not challenge. The proposed appeal would not allow the Court of Appeal to consider the issues Mr W raised regarding his former counsel and Mrs W's alleged perjury. Those issues were best dealt with in the retrial ordered by the High Court. The proposed appeal did not raise a question of law or fact capable of bona fide and serious argument that would outweigh the cost and delay of a further appeal. The High Court declined the application for leave to appeal.

Orders