Ejs v Gd

 
FREE EXCERPT

IN THE FAMILY COURT AT WAITAKERE

FAM-2007-090-001504

In the Matter of the Property (Relationships) Act 1976

Between
E J Shanley
Applicant
and
G Dunsford
Respondent
Appearances:

B MacLean for Applicant

K Davenport for Respondent

JUDGMENT OF Judge D G Mather

[Interlocutory applications as to admissibility of evidence and transfer to High Court]

1

In these proceedings under the Property (Relationships) Act 1976 (“the Act”) the applicant seeks to set aside an agreement between the parties dated 26 August 2008 entered into pursuant to s 21A of the Act (“the agreement”). This agreement was concluded following private mediation.

2

Mr Shanley filed a substantial affidavit in support of his application. In reply the respondent filed three affidavits, from herself, her brother Mr Gary Dunsford, and a friend Ms Kathy Haigh. The applicant seeks an order removing the affidavits of Mr Dunsford and Ms Haigh on the grounds they breach the privilege and confidentiality of the mediation which gave rise to the agreement.

Background
3

The parties were married in 1983 and separated finally in February 2007. The respondent initiated proceedings under the Act in September 2007 and a number of affidavits were filed by both parties.

4

On 16 August 2008 they signed an agreement to mediate with Mr Tony Lendrum as mediator.

5

The agreement to mediate contained the following clause:

  • 3. Privilege and Confidentiality

  • 3.1 The Mediator and the parties and all persons brought into the mediation by either party, agree that the following are privileged and that they will not be disclosed or introduced as evidence in any arbitration, tribunal or Court proceedings unless required by law:

    • (a) any exchanges whether oral or documentary concerning the dispute passing between any of the parties and the Mediator or between any two or more of the parties within the mediation;

    • (b) any views expressed or suggestions or proposals made within the mediation by the Mediator or any party in respect of a possible settlement of the dispute;

    • (c) any admissions made within the mediation by any party;

    • (d) the fact that any party has indicated within the mediation a willingness to accept any proposal for settlement made by the Mediator or by any other party;

    • (e) any documents brought into existence for the purpose of the mediation such as issues, statements or notes made within the mediation by the Mediator or by any party.

  • 3.2 The parties agree that the Mediator will not be subpoenaed as a witness in any Court, tribunal or arbitration proceedings.

  • 3.3 All non parties brought into the mediation by a party shall sign a confidentiality agreement.

  • 3.4 Every aspect of an communication with the mediation shall be without prejudice and the parties and the Mediator agree that all information disclosed by or to them during the mediation (and including any preliminary meetings) shall be kept absolutely confidential and not be used for any purpose other than the mediation unless required by law subject only to a party disclosing information or documents obtained during the mediation to a person not present at the mediation where the party is consulting the person in order to obtain professional advice.

  • 3.5 Any party so disclosing documents or information in such circumstances must inform the professional adviser of the confidentiality attaching to such documents or information.”

6

After a long day of mediation the agreement was signed. It was witnessed and certified by the two lawyers who had represented the parties at the mediation. It complies with the formalities for such agreements under the Act.

7

Relationship property in dispute included a family trust, two real estate properties, significant cash, vehicles and various other items. The total value of property was in the order of $2 million. The basis of the application by Mr Shanly to set aside the agreement is that it provided for a division of property in the order of 72% – 28% in favour of his wife, whereas it should have provided for equal sharing.

The Evidence
8

The only direct reference in the applicant's affidavit to what occurred in the mediation itself appears in paragraph 13 as follows:

“There were a number of matters which affected the mediation. I do not know why they were not taken into account. I have already referred to the financial disadvantage that flowed from Gay's refusal to allow the discharge of the mortgage over Mitchell Street (para (9d)). Another issue arose from Gay withdrawing the following funds from a joint ASB New Lynn bank account post separation for her own benefit: [details]”

9

The respondent relies upon that evidence to support her claim that the applicant has waived privilege attaching to the mediation. She also argues that other paragraphs allegedly constitute waiver – see below.

10

The applicant objects to the following paragraphs in the affidavit of the respondent as breaching the confidentiality of the mediation:

  • “2. I have read Ted's affidavit and application to set aside the agreement we reached. I am interested to read that he says that he has had mental health issues as I am also unwell as a result of the significant physical and mental abuse that I suffered during our relationship. I had been diagnosed with post traumatic stress disorder and depression as a result of my marriage ending and the care of, and subsequent death of, my mother.

  • 3. During the mediation I was so anxious about seeing Ted face to face that I arranged for a support person, Kathy Haigh, who had been a work colleague of both Ted and I, to be present at the mediation. I have asked her to prepare an affidavit about the mediation.

  • 4. By the end of the mediation, I was so distressed by it that I spent most of the time in counsel's office rather than face to face with Ted. However, we both agreed to sign the agreement.

    Lemnos Place

  • 5. The sticking point in reaching agreement for both Ted and I had been that we both wanted to retain the property at Lemnos Place in Titirangi….

  • 7. However at the mediation, Ted's very early offer was to value Lemnos Place at $1,100,000. At the start of the mediation, the mediator listed all of the valuations on the whiteboard but because of this early offer, they were never referred to. Ted said he wanted to retain it and was prepared to pay this figure for it. We did not mutually agree this figure as Ted asserts. I think it would be fair to say that a lot of the mediation focused around that aspect of the agreement.

  • 8. The mediation proceeded and eventually I agreed that he could retain the house at Lemnos Place on the basis of the $1,100,000 offer. I did not have this money to offer to purchase the house at this price without my mother's estate being realised. I was still very concerned about this and believed that he hoped to develop the site and to make a lot of money out of it and this is why the agreement was drafted so that clause 19 was included. This meant that if Ted sold the property for any more than $1,100,000 then I would be entitled to a percentage of the “uplift” on any sale within two years of settlement.

  • 9. Other than this, there were simply no other matters at issue. We agreed on all the matters which were contained in the agreement for relationship property. Annexed hereto and marked with the letter “ B” is a copy of my counsel's spreadsheet that she prepared at the time to show how the assets had been valued (as agreed) and how they would be shared equally.

  • 10. The agreement did in fact proceed on the basis that the total value of the assets was agreed and then it was divided between the parties. The spreadsheet which I have annexed was I believe provided to Mr Templeton at the time of the mediation.

  • 11. There was never any discussion about the section owned by Nexus Family Trust being Ted's separate property. It was always agreed that it would be treated as part of our global relationship property.

  • 12. A further sum of $30,000 by way of a global adjustment was made in my favour being $10,000 in spousal maintenance and $20,000 on account of the rent that had been received by Ted on Gardner Avenue, New Lynn, a property that he had owned and purchased using relationship property and had been receiving rental for. Ted received the rent for this property for some months. This figure was not an exact sum but agreed between us as a global adjustment.

  • 13. There was some discussion at the end about the actual amount which was contained in the ASB account as we had been proceeding on the basis of the cash that was in the account following the sale of Gardner Ave but in fact Ted had taken some money out of the account which is why there were some adjustments which needed to be made. In the end, the adjustment done by Mr Templeton meant that there was a $789.44 adjustment in favour of Ted.

    ...

To continue reading

REQUEST YOUR TRIAL