Winders v Winders - [2018] NZHC 860

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2455 [2018] NZHC 860

BETWEEN
CHRISTOPHER MAX WINDERS

Appellant

AND

JOANNA WINDERS Respondent

Hearing: 13 March 2018

Appearances:

V A Crawshaw and N J Fairley for the Appellant
R J Collis for the Respondent

Judgment:

30 April 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on
30.04.18 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Chambers Craig, Auckland
Lawler & Co, Auckland

Counsel: V A Crawshaw, Auckland
R J Collis, Auckland

WINDERS v WINDERS [2018] NZHC 860 [30 April 2018]

[1] The appellant, Christopher Winders, has appealed a judgment of His Honour

Judge T H Druce in the Family Court at Auckland.1

[2] The judgment involved consideration of an agreement between Mr Winders and his then de facto partner and later wife, Joanna Winders, dated 23 January 2007 (“the s 21 agreement”). This agreement was made pursuant to s 21 of the Property (Relationships) Act 1976 (“the Act”) and provided for Mr and Mrs Winders to contract out of the equal sharing provisions contained in the Act. After the breakup of Mr and
Mrs Winder’s marriage Judge Druce set aside the s 21 agreement at Mrs Winders’ request, on the basis that giving effect to the s 21 agreement would cause “serious injustice” in terms of s 21J of the Act.2

[3] Relationship property appeals from the Family Court are governed by s 39 of the Act, which also incorporates the High Court Rules 2016 and ss 126 – 130 of the District Court Act 2016. Section 127 in particular provides that this type of appeal is by way of rehearing, and is therefore governed by the principles articulated in Austin, Nichols & Co Inc v Stitching Lodestar.3

[4] As a result, and for the reasons recently noted by Ellis J in White v Kay,4 because Judge Druce’s assessment of the s 21 agreement was inherently evaluative rather than discretionary in nature, I approach the appeal on the basis that:

(a) I must come to my own view of the merits of the case;

(b) the weight I give to Judge Druce’s reasoning is a matter for me; and

(c)if I reach a different view from Judge Druce, then I must allow the appeal.

1      Winders v Winders [2017] NZFC 7654.
2 At [62].
3      Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103 [2008] 2 NZLR 141, at [16].
4      White v Kay [2017] NZHC 1643, [2017] NZFLR 592 at [57].

[5] The sole issue to be determined is whether Judge Druce was correct to set aside the s 21 agreement.5

Background

[6] The s 21 agreement, dated 23 January 2007, was made approximately

14 months after Mr and Mrs Winders had commenced a de facto relationship and some

14 months prior to their marriage in March 2008. There is no dispute that…

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 Winders v Winders

Details

AGLC: Winders v Winders [2018] NZHC 860
Case: [2018] NZHC 860
Decision Date: 30 April 2018

CaseChat Overview and Summary

The appeal, brought by Christopher Max Winders, challenges a decision of the Family Court to set aside a s 21 agreement between the parties. The s 21 agreement provided that certain property interests were to be treated as separate property, notwithstanding the operation of the Property (Relationships) Act 1976. The appeal raises the sole issue of whether the Family Court judge was correct to set aside the s 21 agreement. In arriving at a decision, the High Court was required to consider the principles articulated by the Court of Appeal in Harrison v Harrison, which set out the threshold for determining whether giving effect to a s 21 agreement would cause "serious injustice". The Court concluded that the Family Court judge had failed to properly apply the principles in Harrison, and as a result the appeal was allowed, the s 21 agreement was reinstated, and orders were made for the sale of the remaining jointly owned property.

Orders