Two recent decisions in Brainich-Eilander v Ward ( NZHC 2481 and  NZHC 3176) reassess from first principles the power under s 38 of the Property (Relationships) Act 1976 to order inquiries. S 38 allows a Judge to appoint an expert to enquire into any issues of fact in relationship property proceedings including whether property exists that has not been declared and value of property. It has been underused. This decision of the High Court finally breathes life into what should become a powerful tool for relationship property lawyers. The Brainich-Eilander decisions are the first significant decisions looking fully at how the section should operate. The decisions of Heath J expand the operation of s 38 and take a wide view as to the powers the Court can grant to the appointee.
The wife, represented by Lady Deborah Chambers QC, successfully appealed against the decision of the Family Court not to grant her a s 38 order. Heath J held that the Family Court was wrong to regard s 38 as an order of last resort. Any coercive order for information disclosure should be proportionate in the circumstances, whether that be orders for particular discovery, interrogatories, a s 38 inquiry or an oral examination. Bearing that in mind a court must determine the best means by which any information deficit can be remedied. In the second decision Heath J considered the role of a s 38 appointee and the appropriate powers to be vested in the appointee.