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Curtis v McBride [2020] NZFC 7791

Published 17 August 2022

Interlocutory application — relationship property proceedings — appointment of inquiror — delay in discovery — interrogatories — contracting out agreement — duress — imbalance of power — Property (Relationships) Act 1976, ss 1N, 21 & 38 — Family Violence Act 2018 — Dixon v Kingsley [2015] NZHC 2044. The applicant sought an interlocutory order for the appointment of an inquiror pursuant to s 38 of the Property (Relationships) Act ("PRA") in relation to the parties' relationship property proceedings. She claimed that the respondent was causing delay with the discovery process by providing inadequate disclosure. The parties had been in a de facto relationship for five years and had two children together. Two years prior to the end of the relationship the parties had signed a s 21 contracting out agreement. The agreement provided that the applicant would have no interest in various trusts, and that all property at the date of execution of the agreement would remain their separate property, which for the respondent included shareholdings in two companies. The applicant sought to have the agreement set aside on the basis of duress due to the imbalance of power at the time of signing: her evidence being that the respondent had told her he would not support her visa application to enable her to live in New Zealand with him and their children unless she signed the agreement. There were also allegations of family violence and a protection order was in place in favour of the applicant. At issue was whether the Court should, at this juncture, appoint an inquiror to inquire into and report on the respondent's financial matters relating to the trusts and companies in his name, as they related to the parties' proceedings. Counsel for the respondent submitted that the applicant had been advised, several weeks prior to the current hearing, of a list of disclosure ready to be provided to her on her undertaking of confidentiality, which she had not done. On this basis, the Judge considered it was not appropriate to appoint an inquiror at this stage and observed that the applicant should give the undertaking of confidentiality so that the respondent would provide discovery as offered. Should the discovery be inadequate, leave was given to the applicant to return her application for the appointment of an inquiror. Judgment Date: 11 September 2020. ***Note: names have been changed to comply with legal requirements.***