Willis v Willis - [2015] NZHC 2626

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1551 [2015] NZHC 2626

IN THE MATTER OF an appeal from the Family Court

BETWEEN

LESLIE ARNOLD WILLIS Appellant

AND

EILEEN ANNE WILLIS Respondent

Hearing: 21 October 2015

Counsel:

DJG Cox for the Appellant
G Cameron for the Respondent

Judgment:

23 October 2015

REASONS JUDGMENT OF DUFFY J

This judgment was delivered by me on 23 October 2015 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors:
Rennie Cox, Auckland
Peter J Cook, Remuera

Counsel:
Gray M Cameron, Barrister, Auckland

WILLIS v WILLIS [2015] NZHC 2626 [23 October 2015]

[1] This is an appeal from a decision of the Family Court regarding relationship property, which I allowed. My reasons for doing so now follow.

[2] Regrettably, when this matter was before the Family Court it became mired in a procedural morass. Unfortunately, the way in which it has come before this Court precludes me from making determinations that would have resulted in the making of final orders. Instead, I have had no option but to allow the appeal, and to refer the matter back to the Family Court. The result is that a relatively uncomplicated relationship property proceeding involving property of average value which was filed in the Family Court in 2011 remains unresolved, despite the parties having reached an agreed settlement at a judicial settlement conference in 2013.

[3] The issue that led to this appeal had its genesis in a judicial settlement conference in the Family Court held on 30 July 2013 before Judge Southwick QC. On that day the parties reached an agreement (the settlement agreement) which was recorded in handwriting as follows:

May it please the Court, the Parties record the terms of agreement in summary form as follows –

1. 5 Jersey Avenue, Mt Albert, shall be placed on the market forthwith.
The parties shall divide the net proceeds equally.

2.[The appellant] will purchase the former family home at 5A Jersey Avenue, Mt Albert, at an agreed value of $745,000, by paying to [the respondent] the sum of $372,500. This payment is subject to a satisfactory builder’s report being obtained by [the appellant] by 21
August 2013. If [the appellant] is not satisfied with the builder’s
report, this clause may be renegotiated at [the appellant’s] option but
the rest of the terms of this agreement shall prevail. If the parties cannot agree the property shall be placed on the market and sold with the net proceeds to be divided equally between the parties.

3. Funds held with Spicers shall be applied as follows:

a) to pay outstanding debts as identified during the conference;

b)a retention of $10,000 against liquidation winding up and taxation costs

(Any surplus to be divided equally between the parties)

c)the balance to be divided equally between the parties forthwith.

4. [The appellant] keeps the boat and pays [the respondent] $8,000.

5. In respect of [the appellant’s] Waterfront Industry Super [the
appellant] pays [the respondent] $47,500.00.

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 Willis v Willis

Details

AGLC: Willis v Willis [2015] NZHC 2626
Case: [2015] NZHC 2626
Decision Date: 23 October 2015

CaseChat Overview and Summary

Willis v Willis was an appeal from a decision of the Family Court regarding relationship property. The appeal was allowed by Duffy J, who concluded that the Family Court did not have jurisdiction to enforce the settlement agreement reached by the parties at a judicial settlement conference. The case arose from a property settlement dispute between Leslie Arnold Willis and Eileen Anne Willis, which had been before the court since 2011. Despite an agreed settlement being reached in 2013, the matter remained unresolved due to procedural issues. The crux of the appeal was whether the Family Court had the jurisdiction to enforce the settlement agreement under the Property (Relationships) Act 1976. Duffy J found that the Family Court could not enforce the agreement as the properties in question were held by family trusts, and the Act did not provide for such agreements to be binding. Consequently, Duffy J set aside the orders made by Judge Burns and returned the matter to the Family Court, urging the parties to consider alternative dispute resolution methods to bring the matter to a close.

Orders