J v J [2013] NZHC 2759

J v J [2013] NZHC 2759

The husband breached clauses 4.7 and 6.1 by failing to pay or secure the Adjustment Sum by August 2009; alleged variation and estoppel arguments fail because there is no evidence of agreement to vary, procedural formalities of s21F were not met, and silence did not give rise to a duty to speak or mislead the husband; specific performance is unavailable because third party co-ownership prevents clearing title to create the required first mortgage; accordingly the plaintiff is entitled to a money judgment for the full Adjustment Sum of $688,439.91 and no credit is allowed for the defendant's weekly payments.

Citation
[2013] NZHC 2759
Parties
Plaintiff: J; Defendant: J
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 October 2013
Procedural Posture
Relationship Property Agreement Enforcement (high Court) / Summary Judgment
Outcome
Judgment for plaintiff for the full Adjustment Sum; specific performance refused as impracticable; judgment to lie in court for 30 days to enable defendant to arrange funding; costs to plaintiff on scale with reasonable disbursements; leave reserved to counsel to apply
Legal Topics
Specific Performance, Estoppel by Silence, Variation of Agreement, Property (relationships) Act 1976 Formalities, Summary Judgment
Family Law Contract Property Law Equity Civil Procedure Specific Performance Estoppel by Silence Variation of Agreement +2 more

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Parties

J

Plaintiff

J

Defendant

Procedural Posture

Relationship Property Agreement Enforcement (high Court) / Summary Judgment

Legal Issues

  1. 1 Whether the husband validly varied the relationship property agreement or is estopped from enforcing it
  2. 2 Whether the husband has substantially performed obligations under the agreement
  3. 3 Whether specific performance is available or whether the plaintiff is limited to a money judgment

Ratio Decidendi

The husband breached clauses 4.7 and 6.1 by failing to pay or secure the Adjustment Sum by August 2009; alleged variation and estoppel arguments fail because there is no evidence of agreement to vary, procedural formalities of s21F were not met, and silence did not give rise to a duty to speak or mislead the husband; specific performance is unavailable because third party co-ownership prevents clearing title to create the required first mortgage; accordingly the plaintiff is entitled to a money judgment for the full Adjustment Sum of $688,439.91 and no credit is allowed for the defendant's weekly payments.

Court Disposition

Judgment for plaintiff for the full Adjustment Sum; specific performance refused as impracticable; judgment to lie in court for 30 days to enable defendant to arrange funding; costs to plaintiff on scale with reasonable disbursements; leave reserved to counsel to apply

Orders

  • Judgment for plaintiff in the sum of 688439.91 NZD
  • Specific performance refused