Reserved judgment — contract out — enforcement of s 21A agreement — application to vary agreement — application to interpret or imply terms into agreement — Property (Relationships) Act 1976, ss 21A, 21F, 21J, 21L, 21M, 25, 31 & 33 — Belt v Belt (1989) 5 FRNZ 258 — Stott v Stott FC WN FAM-2005-085-000139, 9 August 2006 — Bishop v Bishop (1981) 4 MPC 2017 — WLH v DGH [2013] NZFC 1336 — Norton v Norton-Francis [2016] NZFC 2555 — BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 16 ALR 363. The parties had separated after 12 years of marriage, upon which they applied for a division of property and resolved their dispute with a s 21A agreement. One term of the agreement was the sale of a property owned by the respondent's company, with the net proceeds to be divided equally between the parties and a further adjustment sum of $80,584 paid to the applicant. The property was sold for less than anticipated and the respondent had been unable to pay the adjustment sum to the applicant. The respondent applied for access to the funds in her KiwiSaver account to pay a reduced adjustment sum, arguing that she had expended costs on the property preparing it for sale, and had paid for the applicant's portion of the fee incurred for mediation. The applicant asked that he receive half of the jewellery retained by the respondent; an agreement which was not recorded in the s 21 agreement. The Court noted that neither party had applied to vary the terms of the agreement. Instead, the respondent sought orders for the Court to determine the division of property so that she might not be solely responsible for bearing the loss on the property's sale. The original agreement was not held to be invalid or set aside, nor did any clause require the applicant to contribute to any shortfall in the sale of the property. The Court noted that the applicant had surrendered control of the sale process to the respondent, which he may not have done if the parties were agreeing that he should share in any gain or deficit on the sale of the property. The Court concluded that it was not reasonable and equitable to imply a term in the contract, and that the Court had no power to vary or amend agreements made under s 21A of the Act. The Court found that orders could be made regarding the agreement under s 25 of the Act, enabling the Court to enforce the terms of the agreement. The respondent was allowed access to her KiwiSaver fund to pay $48,663 towards the total adjustment sum owed, with the balance still to be paid. The Court noted that the applicant might be successful in his efforts to obtain half of the jewellery (or the equivalent value) if he brought an application under s 21H, but in the absence of such an application no orders were made. Judgment Date: 20 August 2020