C v B [2015] NZCA 421

C v B [2015] NZCA 421 [9 September 2015]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS)ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHERINFORMATION PLEASE SEEWWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT-US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING-JUDGMENTSIN THE COURT OF APPEAL OF NEW ZEALANDCA297/2014[2015] NZCA 421BETWEEN CAppellantAND BRespondentHearing: 25 June 2015Court: Randerson, Wild and Winkelmann JJCounsel: D R I Gay for AppellantJ H Hunter for RespondentJudgment: 9 September 2015 at 10.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a standard appeal on a band A basis, plus usual disbursements.C This case may be cited as Moor v Marston.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)Table of ContentsPara NoIntroduction [1]Background [2]High Court judgment [6]Appellant's arguments [12]First ground of appeal: interpretation of agreement [18](a) Text [20](b) Context [23](i) Legislative history [27](ii) Effect of recitals [36](iii) Conduct after the agreement [40]Second ground of appeal: effect of s 21R [46]Result [52]Introduction[1] Ms C and Dr B lived in a de facto relationship for many years. Following their separation Ms C commenced litigation seeking orders under the Property (Relationships) Act 1976. Dr B applied to strike out the proceeding on the ground that the parties had concluded an agreement providing for the division of allof their property, which precluded Ms C's claims. In the High Court Venning J dismissed the application to strike out.1 Dr B now appeals that judgment.Background[2] We gratefully adopt the summary of the relevant background facts set out in the judgment of Venning J as follows:2[3] The parties lived together as a de facto husband and wife for a period of some 14 or 15 years.[4] On 31 July 1998 the parties made a property agreement (the agreement). It recorded they had been living in a de facto relationship for several years (and continued to do so) and that they wished to contract out of the then impending extension of the Act to de facto couples.[5] At the time they finally separated in October 2009 the agreement remained in effect.[6] In 2010 Ms [C] took proceedings (the 4221 proceedings) seeking to have the agreement set aside as invalid. She argued she had entered it1 Marston v Moor [2014] NZHC 1140, (2014) 29 FRNZ 762 [High Court Judgment].2 High Court Judgment, above n 1, footnotes omitted, referring to Marston v Moor[2013] NZHC 2249 [4221 proceeding].unwillingly and to her disadvantage as a direct result of Dr [B]'s duress orundue influence, and that he took advantage of her vulnerability so that the agreement should be set aside as unconscionable.[7] Ms [C] then issued these proceedings in the Family Court in October 2011 seeking orders under the Act. The proceedings were transferred to this Court in 2012 and then put on hold pending the outcome of her application in the 4221 proceedings.[8] In a judgment delivered on 30 August 2013 in the 4221 proceedings Keane J found against Ms [C]. Keane J did not consider that at the time Ms [C] entered the agreement she was manifestly under undue influence or duress or in such a state of vulnerability that any pressure Dr [B] subjected her to had made the agreement unconscionable.[9] The Judge was of the view that Ms [C] had effectively affirmed the agreement in the way she had generally acted until the parties finally separated in 2009. He also considered that she had expressly affirmed the agreement in 2007 when Dr [B] had advanced $250,000 to her business. Finally, the Judge concluded that when Ms [C] signed the agreement she was not in a state of particular vulnerability which Dr [B] knew of and exploited, so as to require the agreement be set aside as unconscionable.[10] Keane J accordingly dismissed Ms [C]'s application for a declarationthat the agreement was invalid.[11] Following delivery of Keane J's decision Ms [C] attempted to pursuethese proceedings. That was met by Dr B's submission that Ms [C]'s claimswere barred by the agreement. Directions were made for the filing and service of this strike out application.[3] Although we attach the entire agreement to this judgment as Appendix A, it is common ground that the critical parts of the agreement are recitals B, F, G and cls 1 and 2. For ease of comprehension we set these out here:RECITALSB. The parties have throughout their cohabitation maintained separateness of ownership of property and neither has any expectation of sharing or having any right or interest in any property owned by the other.F. The parties are aware of impending legislation which is likely to provide persons in relationships such as theirs with certain presumed statutory property rights similar to those provided for in the Matrimonial Property Act 1976 to the property of their partner. Both [Dr B] and [Ms C] wish to contract out of and rebut such future provisions and instead define their present and future rightscontractually pursuant to this Deed.G. The parties wish to record the incidence of property owned by each of them now and in the future.OPERATIVE PART1. The property owned by the parties shall be divided as follows:1.1 Land, company shares, bank accounts and all other property in respect of which the incidence of legal title may be recorded in writing shall vest absolutely in that person who at the date of this Agreement has the legal title to that property, provided only that any life assurance policy not expressly described, shall become the separate property of the life assured.1.2 Each chattel shall vest absolutely in that Party who at the date of this Agreement has possession of that chattel.1.3 Each other item of property shall remain with the party who is the existing beneficial owner of that property in each case to be determined as if the Parties had never been living together.2. In the event that the parties purchase any property together in the future that property shall be held in the shares in which the parties record the incidence of ownership of that property and failing such record the shares shall be in the proportions in which the parties have contributed in money to the purchase, but such ownership of that property shall have no effect on the ownership of all other property of the parties.[4] Significant reforms renamed the Matrimonial Property Act 1976 the Property (Relationships) Act 1976 (the Act), and extended its application to de facto partners. We address the relevant legislative history of the Act in some detail later, but at this point it is material to observe that the majority of the amendments came into force on 1 February 2002.3[5] The Act as amended contemplates that spouses or de facto partners may contract out of its provisions.4 Section 21P of the Act addresses agreements such as the agreement in this case, concluded before the amendments came into force and which deal with the status, ownership or division of the present or future property of3 Property (Relationships) Amendment Act 2001, s 2.4 Property (Relationships) Act 1976, ss 21 and 21D. The contracting out provisions came into force on 1 August 2001.the parties to the agreement. It is common ground that s 21P applies to this particular agreement. Section 21R provides that a s 21P agreement has "effect as if this Act had not been passed."High Court judgment[6] The Judge applied the well-settled approach to an application for strike-out as identified in Attorney-General v Prince and Couch v Attorney General.5 Those principles are not in dispute on this appeal.[7] The Judge said the background circumstances relevant to interpreting the agreement were that the parties were financially independent of each other, had maintained their property as their individual separate property from the outset of their relationship, were aware of the proposed or impending extension of the provisions of the Matrimonial Property Act (as it then was) to de facto couples and wished to avoid that consequence.6 He said that Dr B in particular was anxious tokeep the parties' property separate.7[8] Against that background he found that the agreement dealt with theownership of the parties' existing property as at the date of the agreement in cl 1, and also provided for the property the parties might jointly purchase in the future in cl 2.8However, he said that the agreement was not comprehensive.9 It did not address the effect of a number of provisions of the Act. It did not, for example, address the issue of contributions by one or other of the parties to the separate property of the other. The agreement also did not address the situation where one of the parties bought the family home in his or her own name after the date of the agreement. He observed that if that happened, the home would be relationship property pursuant to the Act.[9] The Judge said that subject to specific exceptions the Act is a code in relation to property of spouses and partners.10 Unless the parties make an agreement5 Attorney-General v Prince [1998] 1 NZLR 262 (CA); Couch v Attorney-General[2008] NZSC 45, [2008] 3 NZLR 725.6 High Court Judgment, above n 1, at [25].7 At [24].8 At [34].9 At [39].10 At [42], citing Property (Relationships) Act, s 4.contracting out of the Act, the Act applies. Section 21R does not prevent a claim under the Act in respect of property not dealt with under the s 21P agreement. Therefore to the extent the agreement did not exclude operation of the Act, the provisions of the Act continued to apply.[10] Venning J also dismissed Dr B's argument that Ms C was prevented by theearlier judgment of Keane J in the 4221 proceeding from denying the findings relating to the meaning and effect of the agreement, or its proper construction, on the basis of an issue estoppel.11 Although an appeal from that finding was initially signalled by Dr B, he advised in advance of the hearing that this aspect of the appeal is now abandoned.[11] The Judge dismissed the application to strike out.Appellant's arguments[12] Dr B argues that the Judge erred in construing the agreement as narrowly as he did. He accepts that the meaning of cl 1.3 settled upon by the Judge, which he refers to as the narrow interpretation, is one possible meaning of the words employed, but if correct, it creates a lacuna in relation to individually acquired future property — the very sort of property one would expect these parties, with their background circumstances, to be intending the agreement to cover.[13] Dr B therefore argues that if conventional principles as to the construction ofa contract are applied, a "wide-scope interpretation" of cl 1.3 is the only one open.Under the wide-scope interpretation cl 1.3 is a catch-all provision which deals withany property not expressly addressed in other clauses. The parties' rights to propertyacquired in the future not falling within cl 2 would therefore be determined in accordance with cl 1.3. This interpretation turns upon cl 1.3 being given a"continuously present tense" interpretation, in the sense that it is continuously speaking, addressing the parties' rights at the time when the property falls to bedivided between them. On this interpretation, cls 1.1 and 1.2 cover property existing at the date of the agreement and cl 2 covers jointly acquired future property, while11 At [61].clause 1.3 covers all other property including all future property individually acquired.[14] Dr B argues that this is the only available interpretation in light of the provisions of recitals B, F and G which make clear the agreement was intended to bea code for the parties' property rights in place of the anticipated legislation. Theinterpretation settled upon by the Judge is directly contrary to the wish expressed in those recitals.[15] Moving beyond the text of the agreement Dr B argues that the wide-scopeinterpretation is also supported by the parties' post-contract conduct because throughout their relationship, both parties clearly assumed and affirmed that the exclusions from sharing as relationship property created by the agreement extended to all after acquired assets, and acted accordingly. Finally Dr B argues that the narrow interpretation is contradicted by the instructions given to the solicitor who prepared the agreement.[16] The second ground of appeal is that the Judge erred in the approach he tookto the application of the Act to the parties' property. The Judge effectively held thatbecause the parties had failed to address particular provisions in the Act those provisions applied.12 Dr B argues that in 1998 when the parties entered into their agreement, they could not have foreseen the effect of the proposed De Facto Relationships (Property) Act, or the amended Matrimonial Property Act. They could not then expressly contract out of them. What they could do, and in fact did do, was specify their own sharing regime and contract out from any future legislation that might provide otherwise.[17] Dr B's concluding submission is that the correct approach in cases governedby ss 21P and 21R is for the court to first determine all property rights based on the express or implied provisions of the agreement, and then, and only then, turn to the Act to see what property has not been covered, and therefore the extent to which remaining property, if any, would be subject to the Act's statutory classification and12 High Court Judgment, above n 1, at [51].division rules. If that approach is taken to this agreement, he argues, there is no room for the operation of the Act as contemplated by Venning J.First ground of appeal: interpretation of agreement[18] The success or otherwise of Dr B's appeal depends upon our accepting thatcl 1.3 is properly interpreted as a "washup" clause, providing for all propertyinterests not expressly referred to in cls 1.1, 1.2 and 2 and so displacing entirely the operation of the Act. In other words, that it provides a code for the property rights of Dr B and Ms C.[19] The approach to interpretation of contracts in general governs the interpretation of agreements for the purposes of the Act. In Manning v Manning the Court of Appeal described that approach as follows:13As this Court noted in Trustees Executors Ltd v QBE Insurance (International) Ltd, the majority of the Judges in Vector [Gas Ltd v Bay of Plenty Energy Ltd] took the approach that "the language the parties have used must be read in the context of the document as a whole and thesurrounding circumstances". As this Court said, this means that the "widerbackground and circumstances should always be considered ... . Evidence of background circumstances is not, however, relevant if it does no more thantend to prove what individual parties subjectively intended."(a) Text[20] We begin with the text of the operative clauses which we consider supportsthe Judge's interpretation. The whole of cl 1, of which cl 1.3 forms part, is prefacedwith the present tense statement "the property owned by the parties shall be divided as follows", suggesting that cl 1 addresses the rights of the parties to property ownedby the parties as at the date of the agreement, and not in the future. If it had beenintended to regulate the parties' entitlement to property acquired in the future, itcould be expected that there would be express reference to that. We note that cl 2 does address rights to property purchased in the future and uses the word "future" torecord that.13 Manning v Manning [2013] NZCA 671, (2013) 29 FRNZ 586 at [29] (footnotes omitted).[21] Dr B argues that the use of the word "existing" in cl 1.3 rather than the phrase used in cls 1.1 and 1.2 "at the date of this agreement" provides textual supportfor his interpretation. We agree with the Judge that this is more naturally read as"existing" in the sense of, as at the date of this agreement. We cannot see how somuch meaning could sensibly be intended to be conveyed by that slight change in expression.[22] The structure of cl 1 also provides strong support for the conclusion that it is directed to providing for three categories of existing property, leaving the work in respect of future property to cl 2. The first category, cl 1.1, deals with that category of property where incidents of ownership are recorded in a certificate of title. The second, cl 1.2, deals with chattels, where ownership rights are typically determined by possession. The third category, cl 1.3, is a clause directed at equitable interests in property other than chattels, which are by their nature not recorded in any certificate of title. As the Judge said:14Clause 1 as a whole has a future effect, but only to the extent that the property categorised as separate at the date of the agreement retains that categorisation in the future.(b) Context[23] Although he concedes Ms C's interpretation is available in light of the language used in the operative clauses, Dr B's argues that we should strain againstthis interpretation because it produces what he portrays as the unlikely result in the particular circumstances that the parties make no provision for future separately acquired property. We therefore address whether the background circumstances at the time the agreement was entered into, the recitals, and post-agreement conductsupport Dr B's wide-scope interpretation.[24] We agree that the relevant context for the purposes of interpreting the provisions of the agreement is as identified by Venning J. Dr B also urged upon usas an aid to construction the content of Dr B's letter of instruction to his solicitor to prepare something along the lines of:14 High Court Judgment, above n 1, at [36].Despite our currently living in a de facto relationship, We, the undersigned hereby agree that we will each continue to retain full and individual ownership of all belongings that we currently and at any future time possess in our individual names, unless we specifically add the item to our list of jointly owned belongings.[25] Dr B went on in his letter to note:Essentially we are both content to retain individual ownership of our own existing belongings, and to consider any new acquisition in terms of our individual or joint ownership thereof. Hence although we are eachreasonably aware of the other's existing belongings, neither is overlyconcerned with what the other currently owns.[26] It is accepted that this was a communication from Dr B to his solicitor. Evenif purporting to record the parties' joint instructions, there is no suggestion that Ms Cendorsed the particular content of the letter of instruction. The letter is no more thanevidence of Dr B's subjective intention and is therefore irrelevant to the task ofinterpreting the agreement.(i) Legislative history[27] The impact of the proposed legislative regime upon the couples' usualarrangements for property sharing was a critical aspect of the background to this agreement. It is therefore important to identify the law the parties were anticipating would come into force.[28] In March 1998, about four months before the date of the agreement, the Matrimonial Property Amendment Bill 1998 and the De Facto Relationships (Property) Bill 1998 each received their first reading in Parliament. The focus of the Matrimonial Property Amendment Bill was extending the Matrimonial Property Actto marriages ended by the death of one's spouse. The explanatory note to the Bill concluded that while some other reforms were proposed (such as allowing the court to take into account contributions after the marriage ends), the rules as to division of property under the Matrimonial Property Act were to remain unaffected:15(a) all matrimonial property is subject to a presumption of equal sharing (ss 11&15);15 Matrimonial Property Amendment Bill (109-1) (explanatory note) at ii.(b) in relation to the matrimonial home and family chattels, this presumption can be displaced where there are extraordinary circumstances rendering equal sharing repugnant to justice (s 14);(c) in relation to all other matrimonial property, the presumption can be displaced where the contribution of one spouse has been clearly greater than the other (s 15(1));(d) where the equal sharing presumption is displaced, the property is divided on the basis of contributions to the marriage partnership (ss 14 & 15(2));(e) separate property is all property which is not matrimonial property (s 9(1)); and(f) separate property includes property acquired out of separate property, and an increase in value, income or gains from separate property, unless the increase in value, income or gains was attributable wholly or in part to the actions of the other spouse or the application of matrimonial property, or was used for the acquisition or improvement of matrimonial property (s 9).[29] The De Facto Relationships (Property) Bill proposed a legislative property sharing regime for de facto relationships of at least three years duration, where that relationship was ended by separation or death. In one sense this was significant reform, because there was at the time no legislative property sharing regime for de facto couples. However, even if radical in their own terms, the reforms proposed were significantly more limited than those ultimately enacted. In broad brush terms, under the De Facto Relationships (Property) Bill the presumption of equal sharing was only to apply to the family home and chattels. Shares in the remainder of the relationship property were to be determined by reference to the parties' contributionto the relationship. There was also provision to allow parties to keep property separate, so it did not become relationship property.[30] Neither the Matrimonial Property Amendment Bill, nor the De Facto Relationships (Property) Bill was enacted before the November 1999 general election. The newly elected government took a different approach; creating a single set of rules for property rights for both married and de facto couples, and significantly amending and extending those rules.[31] One of the framework principles of the resulting Act is that all relationship property is to be divided equally, unless there are extraordinary circumstances which make equal sharing repugnant to justice.16 This principle of an overarching presumption of equal sharing of all relationship property had not been present in the De Facto Relationships (Property) Bill in 1998.[32] Accordingly, when entering into the agreement, the Bill the parties had in mind created a statutory presumption for equal sharing only in respect of the relationship home and chattels. Although it contained other property sharing rules, there were no other statutory presumptions.[33] If viewed in that context, the interpretation of the agreement contended for by Ms C does not produce perverse results as Dr B would have it. The parties agreed ownership of their existing property, forestalling any argument about whether or not it was relationship property and who had contributed what. The parties also provided for ownership in respect of property purchased together in the future. As they narrate in the agreement, they each usually kept their property separate, so this latter provision may well have been intended to cover the relationship home.[34] Before us it was common ground between the parties that cl 2 would apply to the relationship home if it had been purchased by the parties together. This interpretation seems correct to us when the agreement is viewed in the context that the property sharing presumption they anticipated was the presumption of equal sharing of the relationship home.[35] Although on Ms C's interpretation the parties left unresolved rights to otherproperty acquired in the future this may have been for good reason, including an16 Property (Relationships) Act, ss 11 and 13.expectation that the legislation, when it came into force, would not impact upon separate property. An example of this is the proposed apartment transaction Dr B relies on. Dr B points to the fact that at the time they were entering into the agreement, he and Ms C were negotiating for the purchase of an apartment through a company vehicle, in which their shareholdings were to reflect their contributions. If the narrow interpretation is given to cl 1.3, the company shares and the advances to the company by Ms C and Dr B would fall outside its terms and be classified as relationship property pursuant to the Act. Dr B argues such an outcome was clearly not intended by the parties. However, if the law as proposed at the time would not have affected that ownership arrangement, then there is nothing unlikely about the apartment ownership falling outside the scope of the agreement.(ii) Effect of recitals[36] Recitals to an agreement can assist in contractual interpretation. They can, as here, record the background to entering into the agreement as agreed by the parties, and can therefore form part of the background taken into account when construing the agreement.17 But, although the recitals can assist in the construction of the contract, they are not themselves operative terms, and therefore should not have undue weight attached to them. The following passage from MacKenzie v Duke of Devonshire elucidates this point:18The narrative words come to no more than this: "My intention is to do" so and so and you may add this, "and I have accomplished that purpose by theprovisions which follow". In such a case the safer and only legitimatecourse is to look at the provisions which follow, and to read them according to the natural and just construction.[37] Applying this approach, we do not consider that the recitals support the wide-scope interpretation argued for by Dr B. Recital B records that throughout their relationship the parties have maintained the separateness of ownership of their property and that neither party has any expectation of sharing or having any right or interest in any property owned by the other, a statement which is consistent with either interpretation.17 K Lewison, The Interpretation of Contracts (5th ed, Sweet & Maxwell, London, 2011) at [10.10]; Dysart Timbers Limited v Nielsen [2007] NZCA 198 at [36].18 Mackenzie v Duke of Devonshire [1896] AC 400 at 407.[38] Recitals F and G, when read in combination, as they sensibly must be, record an intention to provide for existing and future property rights in a manner whichcontracts out of "certain presumed statutory property rights similar to those provided for in the Matrimonial Property Act 1976". Both recitals link that intention to theoperative provisions of the agreement. There is no statement in the recitals of an intention to contract out of all statutory property rights which might be created by the impending legislation. If the parties' intention was to create a code for theirproperty rights, displacing entirely any statutory sharing regime, then it would have been a simple matter to employ language which conveyed that intention. They did not do so. On the contrary, the intention to contract out referred to in the recitals is limited to "certain presumed statutory rights". There is therefore no conflict between the recitals and the operative part as construed by the Judge.[39] In saying this, we note that there is reference to future property sharing regimes in the operative part of the agreement. Clause 6.2 of the agreement provides:This agreement shall continue to be binding and to override and take precedence over any future legislation which is enacted which provides contrary presumptions of ownership in de facto relationships.This does not assist Dr B however, as it begs the question what presumptions of ownership are provided for in the agreement.(iii) Conduct after the agreement[40] Dr B also argues that conduct by the parties after the agreement was entered into is relevant to its construction, because on his case it was conduct consistent with his wide-scope interpretation. This argument encapsulates two instances of post-contract conduct;(a) the treatment of various items of property and proceeds of sale of property; and(b) the circumstances in which an advance was made to Ms C by Dr B during their relationship.[41] In Vector Gas Ltd v Bay of Plenty Energy Ltd Tipping J considered the same principle should apply to evidence of pre-contract and post-contract conduct: extrinsic evidence is admissible if it tends to establish facts or circumstances capable of demonstrating objectively what meaning both parties intended their words to bear.19[42] We do not regard how the parties treated property during their relationship as good evidence of the proper interpretation of the agreement. It is common ground that the agreement was entered into in anticipation of legislation that would regulate the allocation of their assets on separation. In the context of an ongoing relationship the parties were free to deal with their property as they saw fit.[43] As to the advance of funds made by Dr B, his counsel refers us to the following passage in the judgment of Keane J:20[105] In November 2007 Ms [C] wished Dr [B] to advance to her then business $250,000 and he was unwilling to do so unless she confirmed after advice that their agreement still stood. On 7 November 2007 the lawyer who had acted for them throughout wrote to another Auckland barrister saying this:My understanding is that ... (Dr [B]) wants written confirmation from her that what he considers his separate assets remain in that position. I want her to have independent advice on her position before she agrees to that, but if you are able to confirm that the position is as I expect then she can sign such an acknowledgement. As part of that acknowledgement it may also be appropriate to revamp the agreement to bring it in line with current practise as part of the acknowledgement by the parties of their present position.Although there was not full disclosure of asset positions before execution of the existing agreement, I believe the parties now have full disclosure between themselves as evidenced by the schedule of assets.[106] On 20 November 2007, in a file note she made that day, the barrister recorded her opinion that Ms [C] had entered into the July 1998 agreement without sufficient advice, a fact she had regretted. She reviewed with her what had transpired before they entered into that agreement and what had transpired since.[107] The outcome was that Ms [C] did not then elect to challenge the agreement but was advised that if her relationship with Dr [B] ended she could take advice at that point about whether it could be set aside. The barrister advised her that in the meantime there was no point in taking any19 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [31].20 4221 proceeding, above n 2.step that might reinforce it. Despite that, the barrister did not dissent from the 2001 opinion. [In 2001 the couple had sought an opinion from a barrister that the agreement remained effective notwithstanding the Act coming into force].[108] That advice, though privileged, came into the hands of the lawyer then still acting for Dr [B]. The barrister says she never gave it to him and Ms [C] says she never gave the opinion to Dr [B]. She considers that he gained access to it illegitimately in their home.[109] Be that as it may, Dr [B] did then advance $250,000 to her business underpinned by a deed of debt, dated 27 November 2007. But for Ms [C] confirming the validity of the agreement, he would not have done so. It remains to add that in February 2009 he advanced to her a further $48,000 to repay her outstanding credit card debts, of which some $12,000-$16,000 remains outstanding.[110] In 2007, I am satisfied, Ms [C] did affirm the agreement on advice and that is consistent with the way in which she and Dr [B] had held property during their relationship. The only issue that there can be is whether then and earlier she was vulnerable to Dr [B]'s enduring influence to theextent that she describes. It is her case ultimately that, despite appearances, theirs was an unequal relationship in which she was the victim.[44] However counsel for Dr B did not refer us to any evidence to suggest that Ms C confirmed which assets remained the separate property of the parties in terms of the agreement, prior to the advance of the loan. In 2007 when Dr B advanced Ms C money, Dr B's concern seems to have been to obtain, as a condition of that advance, Ms C's confirmation that she was bound by the terms of the agreement.We also do not regard as relevant the interpretation various lawyers placed upon the agreement.[45] For the reasons above, we consider the text, when considered in light of the context in which the agreement was made, does not support the wide-scope interpretation argued for by Dr B. We agree with Venning J that the agreement did not exclude all claims under the Act. This ground of appeal must fail.Second ground of appeal: effect of s 21R[46] Dr B also argues that the Judge erred in finding that to the extent that the agreement did not exclude particular property sharing rules in the Act, these rules applied.[47] The Judge had rejected an argument for Dr B that where relationship property fell outside the scope of the Act because of a s 21P agreement, the Court wasprecluded from taking such "non-justiciable" property into consideration, as theCourt's powers and discretions could only be exercised in relation to justiciableassets. The Judge said that s 21R provides that the Act does not apply to the status, ownership or division of property that is otherwise dealt with by the agreement.21But where the agreement does not deal with one or more issues that the Act provides for, such as particular rules governing the effect of increases in value in separate property attributable to the efforts of the other spouse or the application of relationship property, then the Act may still apply. As to what this meant for the agreement he said:[49] Ultimately the ambit of the particular agreement and its effect on the application of the Act must be determined by the interpretation of the scope of the agreement in issue. In the present case the parties dealt with the ownership of their existing property in cl 1 and provided for the prospect of future property in cl 2. However, as noted, they failed to address what was to happen if, for example, one of them applied their separate property to increase the value of what otherwise would have been relationship property or made contributions to the separate property of the other in terms of s 17A.[48] We agree that s 21R does not prevent a claim under the Act in relation to suchissues. In our view the expression "as if this Act had never been passed" in s 21Rmeans no more than that agreements under s 21P that were valid and capable of enforcement before 1 August 2001 have effect despite the amending legislation.22The validity of s 21P agreements does not therefore depend upon compliance with the formal requirements of the Act. Section 21R does not however mean that any property dealt with under an agreement constitutes some third category of property, beyond the reach of the Act. The issue is whether, as a matter of contractual interpretation, the agreement displaces the operation of the Act.[49] We agree with Venning J that where the agreement does not by its terms, expressly or by necessary implication, displace the operation of particular statutory rules, then those rules apply. Dr B complains that this is unfair as the parties could not have foreseen the final form of the Act, and so could not contract out of these21 High Court Judgment, above n 1, at [48].22 The purpose of including savings provisions generally is to save or preserve pre-existing rights,Attorney-General on behalf of the Ministry of Health v Spencer [2015] NZCA 143 at [91].specific provisions. What they could and did do was specify their own sharing regime and contract out from any future legislation that might provide otherwise.[50] We agree that approach was available to the parties, but as we have held, the agreement does not create a comprehensive regime for sharing of existing and future property as Dr B would have it. We therefore do not see the issue as one of fairness, but one of contractual interpretation. It was always open to the parties to revisit the terms of the agreement once the final form of the statutory regime was known, if the form of the agreement did not sufficiently address the rights and obligations created by the new regime.[51] It will be for the High Court to determine in light of this judgment the nature of any claims Ms C may still have available under the Act.Result[52] The appeal is dismissed.[53] The appellant must pay the respondent costs for a standard appeal on a band A basis, plus usual disbursements.[54] In White v Northumberland [2006] NZFLR 1105 at [63]–[64] this Court noted the difficulty faced by lawyers coping with case names which are frequently a jumble of initials. For ease of later citation, we give leave for this case to be reported and cited as Moor v Marston (which are not, of course, the parties' realnames).Solicitors:A C Wright, Auckland for AppellantWalker Associates Solicitors, Auckland for RespondentAppendix A31 JULY 1998 AGREEMENTRECITALSA. The parties have lived in a de facto relationship for several years and continue to do so.B. The parties have throughout their cohabitation maintained separateness of ownership of property and neither has any expectation of sharing or having any right or interest in any property owned by the other.C. [Dr B] has not paid anything or done or refrained from doing anything which he would consider was in the nature of creating an obligation by constructive trust orotherwise on [Ms C] to grant a share or interest in any of [Ms C's] property to [DrB].D. [Ms C] has not paid anything or done or refrained from doing anything which[Ms C] would consider was in the nature of creating an obligation by constructivetrust or otherwise on [Dr B] to grant a share or interest in any of [Dr B's] property to[Ms C].E. Each party is employed and self sufficient and entered the relationship with independent property and means.F. The parties are aware of impending legislation which is likely to provide persons in relationships such as theirs with certain presumed statutory property rights similar to those provided for in the Matrimonial Property Act 1976 to the property of their partner. Both [Dr B] and [Ms C] wish to contract out of and rebut such future provisions and instead define their present and future rights contractually pursuant to this Deed.G. The parties wish to record the incidence of property owned by each of them now and in the future.H. The parties wish to record that in the event of their future marriage this agreement shall apply whether or not the parties marry.OPERATIVE PART1. The property owned by the parties shall be divided as follows:1.1 Land, company shares, bank accounts and all other property in respect of which the incidence of legal title may be recorded in writing shall vest absolutely in that person who at the date of this Agreement has the legal title to that property, provided only that any life assurance policy not expressly described, shall become the separate property of the life assured.1.2 Each chattel shall vest absolutely in that Party who at the date of this Agreement has possession of that chattel.1.3 Each other item of property shall remain with the party who is the existing beneficial owner of that property in each case to be determined as if the Parties had never been living together.2. In the event that the parties purchase any property together in the future that property shall be held in the shares in which the parties record the incidence of ownership of that property and failing such record the shares shall be in the proportions in which the parties have contributed in money to the purchase, but such ownership of that property shall have no effect on the ownership of all other property of the parties.3. No apportionment shall be made in respect of any interest dividends or other income or expenditure which may at the time of this Agreement have already been received or paid or have accrued due or be owing and each party shall take the property to which he or she may be entitled under this Agreement subject to such debts owed to third parties as may at the date of this Agreement be charged upon that property and shall indemnify the other party in respect of any liability which that other party may have in respect of such debt.4. Each party shall do everything necessary and sign all documents necessary to give effect to this Agreement.5. In consideration of the foregoing each party releases and discharges the other from all liability in respect of the assets vested in the other pursuant to this agreement and acknowledges that there is no constructive trust issue in respect of those assets.6.1 This agreement shall be binding on the parties in all circumstances including bankruptcy, the taking of property and execution by creditors, separation (whether on one or more occasions), reconciliation, or the death of one or both parties.6.2 This agreement shall continue to be binding and to override and take precedence over any future legislation which is enacted which provides contrary presumptions of ownership in de facto relationships.6.3 In the event that the parties subsequently marry this agreement in the absence of any contrary written agreement or variation shall continue in force and operate as an agreement between the parties as between husband and wife pursuant to s 21(1) of the Matrimonial Property Act 1976.6.4 It is the intention of the parties that their respective positions as owners of property as reflected in this agreement shall only be varied where the parties agree in writing to such variation.7. [Dr B] and [Ms B] acknowledge and agree that they have made full and fair disclosure each to the other of all Property and further that each of them had independent legal advice before signing this agreement.8. Each party shall bear his or own legal costs of and incidental to this agreement.