Wylie v Wylie - [2021] NZCA 521

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA600/2019
[2021] NZCA 521

BETWEEN	SHAUNE KAHU WYLIE Appellant
AND	KIRSTEN MONIQUE WYLIE First Respondent
AND	KIRSTEN MONIQUE WYLIE, SHAUNE KAHU WYLIE AND JANE ELIZABETH ALLEN AS TRUSTEES OF THE TOTAL TRUST Second Respondents
AND	THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED AS TRUSTEE OF THE WYLIE FAMILY TRUST Third Respondent
AND	TOTAL VETERINARY SERVICES LIMITED Fourth Respondent
AND	KIRSTEN MONIQUE WYLIE, RICHARD ALLAN LEACH AND KEITH ROBERTS AS TRUSTEES OF THE ROBERTS FAMILY TRUST Fifth Respondents

Hearing:	13 July 2021
Court:	Brown, Gilbert and Courtney JJ
Counsel:	M T Lennard and M C McCarthy for Appellant S N van Bohemen and A L Bayliss for First Respondent No appearance for Second to Fifth Respondents
Judgment:	11 October 2021 at 10 am

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is declined.
BThe appeal is dismissed.
CThe appellant must pay costs to the first respondent for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Table of Contents

Introduction  [1]
Grounds of appeal  [12]
Did the Judge err in finding Mr Wylie received adequate advice
before signing the COA?
           Legal principles  [13]
           Pleadings  [15]
           Evidence in the High Court   [16]
           Submissions in the High Court   [17]
           High Court judgment  [19]
           Submissions on appeal  [21]
           Application to adduce new evidence  [24]
           Should Mr Wylie be allowed to raise “the concept/plan in place”
           thesis for the first time on appeal?  [38]
Did the Judge err in finding Mr Wylie received independent advice?    [46]
Result  [58]

Introduction

Mr Shaune Wylie, a chemical engineer, and Dr Kirsten Wylie, a veterinarian, commenced living together in a de facto relationship in January 2005. Both were aged in their late thirties. Mr Wylie had not been previously married, but he had fathered a child. Dr Wylie had previously been married but she had no children. The couple married in March 2008 and separated seven years later, in June 2015.
The parties each had property and business interests of their own prior to commencing their relationship. Mr Wylie wished to protect his assets from potential claims from the mother of his child and from Dr Wylie. He also wished to minimise his income to limit his exposure to paying child support. With these objectives in mind, during the course of their relationship the parties formed two companies, established two trusts and entered into an agreement (the COA) contracting out of the provisions of the Property (Relationships) Act 1976 (the PRA).
Dr Wylie incorporated Total Veterinary Services Ltd (TVS) in August 2005 to own and operate her veterinary practice. Mr Wylie formed Petmove Ltd (Petmove) in May 2007, a company involved in the transportation of pets. Each was the sole director and shareholder of their respective companies.
The Wylie Family Trust was settled in May 2009 for the purpose of taking title to…

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.

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Details

Case: [2021] NZCA 521
Decision Date: 11 October 2021 at 10 am

CaseChat Overview and Summary

Wylie v Wylie was an appeal by Shaune Wylie against a decision of the High Court dismissing his claims in five proceedings. The proceedings concerned the validity of a contracting out agreement (the COA) entered into by Shaune and Kirsten Wylie, the distribution of their assets on their separation and the validity of certain trusts. The Court of Appeal dismissed the appeal. The appeal related primarily to the contracting out agreement proceeding in which Shaune sought to set aside the COA on the grounds that he had not received adequate or independent advice before signing it. Shaune claimed that his solicitor, Ms Allen, had failed to advise him on the implications of the COA in the context of a "concept/plan" said to be "in place" at the time the COA was signed. This "concept/plan" was said to be a plan to transfer the parties' income-earning assets to a trust. The Court of Appeal held that the claim was raised for the first time on appeal and that it was contrary to the interests of justice to allow it to be raised at that late stage. The Court of Appeal also held that the Judge was correct to find that Shaune received independent advice from Ms Allen before signing the COA. The Court of Appeal dismissed the appeal and ordered Shaune to pay costs.

Orders