Veterinarian Kirsten Wylie, left, will not have to pay her ex-husband proceeds from the sale of her business.
A Christchurch engineer has failed in a Court of Appeal bid to get half the sale proceeds of his ex-wife’s veterinary clinic.
Kirsten, a veterinarian, and Shaune Wylie, a chemical engineer, started living together in 2005 and married in March 2008. The marriage collapsed seven years later.
They both had property and business interests of their own and had signed an agreement contracting out of the Property (Relationships) Act 1976.
Kirsten Wylie operated her veterinary clinic under the company Total Veterinary Services, and Shaune Wylie set up a pet transporting business called Petmove Ltd. She was given independent advice on the contracting out agreement.
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Total Veterinary Services was very successful and Kirsten Wylie sold the practice for a substantial sum in 2017, about a year after the marriage break-up. Petmove had little value.
Under their agreement, neither had any claim on the other’s business.
Shaune Wylie first went to the High Court in Christchurch, claiming he was entitled to half of the sale proceeds of his wife’s business, partly on the ground they made an oral agreement during the marriage to merge their business interests.
The High Court rejected his claim and he appealed to the Court of Appeal, arguing, among other things, that the contracting out agreement was void because he did not receive truly independent advice as required by the Act.
His legal team argued the agreement was drafted on the basis of what both parties wanted, “the very antithesis” of the independence required of his lawyer.
It was not enough that his lawyer met with him alone because earlier meetings had already compromised her independence.
The Court of Appeal upheld Justice Nation’s decision, saying it was not uncommon for parties who wanted to contract out to use their usual solicitor to prepare an agreement “intended to give effect to their joint wishes”.
“The receipt of such joint instructions would not normally disqualify the solicitor from being able to give independent advice to one of the parties with the other party being referred to another solicitor for independent advice.
“The question is whether there is any impediment to the solicitor discharging his or her obligations to the party being advised and this will usually depend on whether there is any potential conflict of duty.
“This will not normally be the case so long as the instruction can be accepted without compromising any obligation owed to the other party, such as the obligation not to disclose information obtained in confidence while acting for that party on some other matter.”
Kirsten Wylie was awarded costs.