New Zealand Case Law: Decisions & Judgments | LexChat

New Zealand Case Law

Independent legal advice (s21f)

  • 19 Sept 2023

    GERRING-GUNN v GUNN [2023] NZHC 2603

    Citation
    [2023] NZHC 2603
    Court
    High Court

    The High Court concluded the Family Court did not err on the substantive issues: the 2011 agreement complied with requirements, independent legal advice was given and not demonstrably inadequate, the strong presumption of equal sharing was not rebutted, and the evidence did not establish a continuing de facto relationship after dissolution; however the Family Court erred in finding exceptional circumstances under the Legal Services Act s45 to order costs against an aided person, so the appeal is allowed only on liability for costs with a declaration that but-for s45 the appellant would have b…

    • De facto relationship
    • Contracting-out/settlement agreements
    • Setting aside agreement for serious injustice
    • Independent legal advice (s21f)
    • Exceptional circumstances for costs (legal services act s45)

  • 17 Jul 2017

    WHITE v KAY [2017] NZHC 1643

    Citation
    [2017] NZFLR 592
    Court
    High Court

    The High Court upheld the Family Court: although Ms Kay received adequate independent legal advice within s21F, the contracting out agreement was set aside under s21J because giving effect to it would cause serious injustice given the agreement's opaque terms, the length and dynamics of the relationship, and the resultant overwhelming disparity; accordingly the court ordered equal division of relationship property under s25 and dismissed the appeal and cross-appeal.

    • Contracting out agreements
    • Independent legal advice (s21f)
    • Serious injustice (s21j)
    • Division of relationship property (s25)
    • De facto relationships

  • 14 Dec 2010

    S B V G M H HC HAM CIV-2010-419-887

    Citation
    openlaw-e40286c7_91da_45f9_a767_edd4336c758f.pdf
    Court
    High Court

    Although the common law test for duress was not established to the required degree, the Contracting Out Agreement was set aside under s21J because, on the interweaving of factors (the agreement materially reduced rights already accrued to the respondent, was incomplete, lacked disclosure of values, was signed following significant pressure and little opportunity to reflect, and was challenged from the outset), giving effect to it would cause the respondent serious injustice; the disputed assets were relationship property and the respondent was entitled to a half share calculated at $226,565.5…

    • Contracting out agreement
    • Duress
    • Serious injustice (s21j)
    • Validation of informal agreements (s21h)
    • Relationship property division
    • Independent legal advice (s21f)