Six years after their property assets were divided as part of a relationship property agreement the two are back in court; there was no written agreement as to division of joint liabilities, in particular a $1.7 million Westpac mortgage.
Jan Kemp and Andre Kemp-Upton separated in 2014 after a 32 year marriage.
The High Court was told at that time they had joint control of five Auckland properties and a property in Fiji, all held through a family trust. With the assistance of their then accountant, a schedule of joint assets and liabilities was drawn up and agreement in principle reached on division of assets and liabilities. Seeking to avoid the need to make any cash adjustments, it was agreed the properties would be valued and then parcelled out between the two; Andre took two Auckland properties and their interests in Fiji, Jan the remaining three Auckland properties.
A formal relationship property agreement signed three months later agreed transfer of the properties but made no specific reference to liabilities, other than joint liability for their personal credit card debts at time of separation.
In 2021, Andre sued, claiming he had paid more than his half share of their joint liabilities. He demanded payment of some $136,000 to square their obligations.
Jan took the fast-track summary judgment route, claiming there was never any agreement to share liabilities. Provision for existing mortgage liabilities was dealt with in net asset valuations for the properties since shared out, she says. Her former husband’s current claim suggests their previously agreed property valuations were skewed in his favour she says. In addition, there had never been any valuation made or credit given for her share of Andre’s business, Our Space Architecture Ltd, which was agreed to be a relationship asset, she states.
Disputed facts cannot be dealt with in fast-track summary judgment applications, Justice Robinson said. It needs a full court hearing.
It is for Andre to establish how the original property valuations were calculated and to explain why their relationship property agreement failed to state liabilities were to be shared equally as he now claims, Justice Robinson ruled.
Kemp v. Kemp-Upton – High Court (1.03.24)
24.065