NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV 2020-441-77
[2023] NZHC 703
IN THE MATTER OF the Property (Relationships) Act 1976 AND
IN THE MATTER OF
a claim in equity for constructive trust and knowing receipt
BETWEEN
WL
Plaintiff
AND
AJ
First Defendant
RA
Second Defendant
CIV 2021-441-41 BETWEEN
AJ
Plaintiff
AND
WL
Defendant
Hearing: 3–5 October 2022 (further memorandum filed 17 October 2022) Counsel:
P N Ross for Plaintiff
E V R Stannard and M A B Black for Defendants
Judgment:
31 March 2023
JUDGMENT OF MALLON J
WL v AJ [2023] NZHC 703 [31 March 2023]
Table of contents
Introduction [1]
Background [5]
The relationship [5]
The Agreement [10]
After the Agreement [12]
Contributions during the relationship [16]
Property [23]
Law [25]
General provisions [25]
Division of relationship property [28]
De facto relationships of short duration [34]
Contracting out agreements [36]
The Agreement [44]
Circumstances of the Agreement [44]
Content [56]
Findings on content and circumstances of Agreement [63]
Is the Agreement to be given effect [68]
Is this a contracting out agreement under s 21 [68]
Does the Agreement satisfy the s 21F criteria? [72]
Should the Agreement be given effect under s 21H [75]
Void for duress, undue influence or lack of certainty [82]
Serious injustice [84]
Equal division of relationship property [93]
Compensation for post-separation contributions [100]
Order for division or sale [102]
Costs [105]
Result [106]
Introduction
[1] WL and AJ lived together as a couple for approximately 17 years inclusive of periods of separation. Early in their relationship, WL purchased a property (the Property) for $128,000. During an early period of separation, they signed an agreement (the Agreement), prepared by WL’s sister, purporting to exclude the Property as relationship property. Neither party received independent legal advice at the time they signed the Agreement.
[2] AJ now claims half the equity in the Property, occupational rent for the period WL has lived in the Property following their separation, and a declaration that the
contracting out agreement is void or for it to be set aside on the basis that it is seriously unjust. She also seeks equal division of the other relationship property.
[3] WL seeks an order that the Agreement be given effect so that the Property is his separate property and for the rest of the relationship property to be divided equally. If the Court invalidates the Agreement, then he seeks a division of not less than 80 per cent of the relationship property in his favour and an order that no adjustments be made for occupational rent.
[4] WL also brought High Court proceedings alleging that AJ had used relationship property funds to contribute to her brother’s deposit on his house (RA’s house). WL…
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- Case
- [2023] NZHC 703
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CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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