Audun Gudmundsson v Hsiao-Mei Lin
[2024] EWHC 1576 (Fam)
HP v AP
31 March 2023
[2023] EWFC 49 (B)
Family Court
Someone tried to cancel a property agreement, saying their ex hid information about old loans. The judge said the old loans weren't important enough to change the agreement, so the agreement stands, and the house will be sold.
Key Facts
- •On 12 September 2017, the parties reached an agreement during a round table negotiation to resolve their ongoing financial proceedings.
- •The agreement included transferring the former matrimonial home (FMH) to the applicant, subject to a charge in favour of the respondent.
- •The applicant applied to set aside the consent order, alleging the respondent's non-disclosure of information invalidated the agreement.
- •The respondent applied for an order for sale of the FMH.
- •The applicant acted as a litigant in person; the respondent was represented by counsel.
- •The key dispute concerned the respondent's beneficial interest in a property ('No. 42'), which the applicant claimed formed part of the marital assets.
- •The respondent claimed he held No. 42 as a bare trustee for his father.
- •The applicant discovered two undisclosed loans the respondent had taken out against No. 42 in 1998 and 1999.
- •The applicant argued that had these loans been disclosed, the outcome of the 2017 proceedings would have been materially different.
Legal Principles
A party may apply to set aside a financial remedy order where non-disclosure led the court to act under a misunderstanding of the facts.
FPR 2010 r.9.9A(2), Sharland [2015] UKSC 60, Gohill [2015] UKSC 61
The onus is on the party seeking to set aside the order to show the new evidence is material and would have led to a substantially different order. If fraud or intentional non-disclosure is established, the burden shifts.
Jenkins v Livesey (formerly Jenkins) [1985] AC 424
A party relying on undue influence must establish the pressure emanated from the other party, not the circumstances. Representation by a party can be significant in rebutting undue influence.
Outcomes
The application to set aside the consent order was dismissed.
The judge found that while the loans were not disclosed, they were not materially non-disclosed. Their historical nature and lack of obvious relevance to the 2017 proceedings meant they would likely not have materially impacted the outcome, even if disclosed. The judge also did not find evidence of fraud or undue influence.
An order for sale of the FMH was made.
This followed directly from the dismissal of the application to set aside the consent order, as the applicant conceded sale was inevitable if the set aside application failed.