Batusova v Drew - [2024] NZHC 1580

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002740

[2024] NZHC 1580

BETWEEN
YULIYA BATUSOVA

Appellant

AND

MARTIN PHILIP DREW

Respondent

Hearing: 11 June 2024

Appearances:

Appellant in person

J A Browne for Respondent

Judgment:

17 June 2024

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 17 June 2024 at 10:30 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Solicitors:
Henderson Reeves, Whangārei Copy to: Yuliya Batusova

BATUSOVA v DREW [2024] NZHC 1580 [17 June 2024]

[1] The appellant, Yuliya Batusova, appeals directions made by Judge I A McHardy in the Family Court at North Shore on 31 October 2023 (the Directions) concerning orders made for the division of relationship property between Ms Batusova and her former husband, Martin Drew, the respondent, following a judgment issued by Judge McHardy on 3 July 20191 and a consent order made and sealed on 19 November 2019 (Sealed Order).

[2]The Directions, which were issued on the application of Mr Drew, concerned:

(a)whether an order for adjustments (Adjustments Order) in favour of Mr Drew directed in the Relationship Property Judgment was presently enforceable or was conditional on the sale of the former family home at 8b Oban Road, Browns Bay, Auckland (which is currently occupied by Ms Batusova);2 and

(b)whether interest applies to the Adjustments Order from the date of judgment, and if so, at what rate.

[3] The Judge directed that the Adjustments Order was not conditional on the sale of 8b Oban Road, and that interest accrued at five per cent per annum from the date of judgment.

Relevant background

[4] On 29 and 30 April 2019, Judge McHardy heard Mr Drew’s application for division of the relationship property between himself and Ms Batusova.

[5]On 3 July 2019, Judge McHardy issued the Relationship Property Judgment.

[6] As at the date of hearing, a caveat in favour of Mr Drew’s solicitors, Henderson Reeves, had been registered against the title to 8b Oban Road (the Henderson Reeves Caveat). On 24 June 2019, after the hearing but prior to the issue of the Relationship

1 Drew v Batusova [2019] NZFC 3722 [Relationship Property Judgment].
2 For the purposes of this judgment, “Adjustments Order” means the net amount to be paid by Ms Batusova to Mr Drew under the Relationship Property Agreement and the Sealed Order.

Property Judgment, Ms Batusova’s son, Evgeny Batusov, also known as John Batusov, also registered a caveat against the title to 8b Oban Road (the Batusov Caveat). Since there is no reference to the Batusov Caveat in the Relationship Property Judgment, it appears that Judge McHardy was unaware of that caveat.

Relationship Property Judgment

[7]In the Relationship Property Judgment, the Judge stated the following:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Batusova v Drew

Details

AGLC: Batusova v Drew [2024] NZHC 1580
Case: [2024] NZHC 1580
Decision Date: 17 June 2024

CaseChat Overview and Summary

Yuliya Batusova appeals the directions issued by Judge I A McHardy in the Family Court at North Shore on 31 October 2023, concerning orders made for the division of relationship property between Ms Batusova and Martin Drew. The directions addressed whether an order for adjustments (Adjustments Order) in favour of Mr Drew was presently enforceable or conditional on the sale of the former family home at 8b Oban Road, Browns Bay, Auckland, and whether interest applied to the Adjustments Order from the date of judgment, at what rate. Judge McHardy directed that the Adjustments Order was not conditional on the sale of 8b Oban Road, and that interest accrued at five per cent per annum from the date of judgment. The court found that the Directions were appealable as they related to the enforceability of the Adjustments Order contingent on the sale of 8b Oban Road. However, the obligation to pay interest was not appealable as it arose by operation of law. The court concluded that Judge McHardy was in error in directing that the Adjustments Order was not conditional on the sale of 8b Oban Road. The court allowed Ms Batusova’s appeal regarding this aspect of the Directions and set aside the corresponding direction. It reiterated that interest at five per cent per annum accrues on the sum payable under the Adjustments Order from the date of the Relationship Property Judgment to the date of payment. Ms Batusova, being substantially successful in her appeal and self-represented, faced no issue as to costs.

Orders