White v Kay - [2017] NZHC 1643

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV 2016-443-062 [2017] NZHC 1643

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of an appeal against a decision of the
Family Court at New Plymouth

BETWEEN

MICHAEL COLIN WHITE Appellant

AND

MAREE BETTY KAY Respondent

Hearing: 1 May 2017

Counsel:

A Laurenson for Appellant
C Delston for Respondent

Judgment:

17 July 2017

JUDGMENT OF ELLIS J

[1] Mr White and Ms Kay were in a de facto relationship for 28 years from the mid 1980s until 2012. They had one child together who is now an adult.

[2] In 2004, Mr McKay and Ms Kay entered into an agreement contracting out of the presumptive equal sharing regime under the Property (Relationships) Act 1976 (the PRA). The effect of that agreement was that, when the relationship ended, Ms Kay was entitled to nothing. But Mr White kept assets now worth over
$1 million, including the family home.

[3] Ms Kay applied to the Family Court to have the agreement avoided or set aside. Judge Pidwell declined to void it under s 21F of the PRA because she found that Ms Kay had received independent legal advice prior to signing the agreement.
But the Judge set the agreement aside under s 21J of the PRA on the grounds that

WHITE v KAY [2017] NZHC 1643 [17 July 2017]

giving effect to it would cause serious injustice. The Judge then ordered under s 25 that all the property of the relationship be divided equally between Ms Kay and Mr White.1

[4] Mr White now appeals both the setting aside and the equal division. Ms Kay cross-appeals against the Judge’s determination that the agreement was not void under s 21F.

Background

[5] The following factual narrative is largely taken from Judge Pidwell’s

judgment.

The first 20 years of the parties’ relationship

[6] Mr White and Ms Kay met in 1984. Ms Kay was 22 years old at the time and worked in a poultry factory. It was her first significant relationship. Mr White worked at the freezing works. He had had two previous relationships one of which had produced a child. He owned a house in Brown Street, Waitara, which he had bought for $12,000 at a mortgagee sale. He had paid a $2,000 deposit and paid the mortgage off quickly.

[7] Ms Kay moved into the Brown Street property.2 She changed jobs and began working in a sewing factory. Mr White left the freezing works and became self-employed, buying vehicles and equipment, repairing and on-selling them.

[8] The couple kept their financial affairs separate. In 1985 Ms Kay gave up her job. There is a dispute as to whether that was her choice or whether Mr White encouraged it. In any event, it seems that Mr White provided Ms Kay with money
when she needed it.

1 Kay v White [2016] NZFC 4942.
2 Mr White maintains that she did not move in with him until later, but it seems the…

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 White v Kay

Details

AGLC: White v Kay [2017] NZHC 1643
Case: [2017] NZHC 1643
Decision Date: 17 July 2017

CaseChat Overview and Summary

In White v Kay, the High Court considered an appeal by Michael White against the Family Court decision to set aside a contracting out agreement and divide the parties' property equally. Maree Kay cross-appealed against the Family Court's decision not to void the contracting out agreement under s 21F of the Property (Relationships) Act 1976. The agreement gave Mr White all the assets of the relationship. The Court found that Ms Kay had received independent legal advice and that the agreement complied with s 21F of the Act. However, it found that the agreement should be set aside under s 21J because giving effect to it would cause serious injustice. The Court also ordered an equal division of the parties' property. The Court found that the Family Court was correct to set aside the agreement and order an equal division of property. The Court held that the agreement was unfair and unreasonable from its inception, and the disparity in the division of property was overwhelming. The Court also found that the Family Court was correct to order an equal division of property, as both parties were ready to go to trial on all issues other than valuation. The Court held that Ms Kay's cross-appeal failed because the Family Court was correct to find that she had received independent legal advice. The Court held that the Family Court was correct to find that the agreement complied with s 21F of the Act, as the letter sent by the lawyer who witnessed Ms Kay's signature evidenced that he had given her frank and thoughtful advice. The Court held that Mr White's appeal and Ms Kay's cross-appeal both failed and were dismissed, and that costs should lie where they fell.

Orders