Potter v Potter (New Zealand)

Potter v Potter (New Zealand) [2004] UKPC 41 (22 July 2004)

Privy Council Appeal No. 20 of 2004

Arthur John Bolton Potter Appellant

Louisa Jane Potter Respondent

FROM

THE COURT OF APPEAL OF NEW ZEALAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 22nd July 2004

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Present at the hearing:-

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

[Delivered by Lord Scott of Foscote]

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This litigation has arisen out of the breakdown in the relationship between the appellant, Mr John Potter, and the respondent, Ms Louisa Potter. They are second cousins and began living together in February 1997. They parted for a while but came back together and in April 1998 their first child was born. They decided to move to and buy a home in Kerikeri and in September 1998 entered into a contract to purchase a pro perty ("Inlet Road") for $875,000. Their intention was that Inlet Road would become their family home. Their relationship was, they thought, on a permanent basis.

Before their purchase of Inlet Road was completed they took the very wise precaution of signing a written agreement setting out the financial arrangements agreed between them. The written agreement was drafted by the appellant's solicitor. But the appellant very sensibly arranged for the respondent to be given independent legal advice about the agreement and its contents before she signed it. She received that advice and the agreement was then signed by both parties. It was entitled "Property Sharing Agreement" and dated 29 September 1998.

The parties moved into Inlet Road together with their son and an older child of the respondent. It was their family home. But unfortunately their relationship deteriorated and in April 1999 the appellant left Inlet Road and returned to live in Wellington. The respondent was pregnant at the time with their second child. Her child was born in December 1999 and she continued to live at Inlet Road with her three children.

Following the appellant's departure from the family home in April 1999 he commenced litigation against the respondent. He sought an order for sale of Inlet Road and orders in connection with the proceeds of sale that would have excluded the respondent from any share. The proceedings raised a number of other issues as well, relating to improvements said to have been made to Inlet Road by the appellant, relating to rentals and profits said to have been received by the respondent and for which she was said to be accountable, and relating to various chattels at Inlet Road said to belong to the appellant but to be withheld from him by the respondent. These other issues were settled by the judgment of Chambers J. As to Inlet Road, the respondent agreed that the property would have to be sold and Chambers J made an order to that effect. The only issue still outstanding was whether the respondent was entitled…

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