Bradford v Te Hei - [2021] NZHC 3485

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-000126

[2021] NZHC 3485

UNDER the Property (Relationships) Act 1976

IN THE MATTER OF

an application under s 25(3) for division of property

BETWEEN

JONATHAN LEE BRADFORD

Applicant

AND

REANA GAYE TE HEI

Respondent

Hearing: 16 August 2021

Appearances:

D J More for the Applicant

L A Andersen QC and J W Clearwater for the Respondent

Judgment:

16 December 2021

JUDGMENT OF NATION J

Introduction

[1] Ms Te Hei and Mr Bradford began a relationship in May 2015. They separated on 29 July 2017. They agree it was a relationship of short duration for the purposes of the Property (Relationships) Act 1976 (PRA).

[2] During their relationship, they jointly purchased a property at Andersons Bay in Dunedin (the home). On separation, the relationship property of the parties consisted of the home, family chattels, Mr Bradford’s motor vehicle and bank accounts. Agreement has been reached over the division of family chattels and a joint bank account. At issue in these proceedings now is their entitlements as to the home.

BRADFORD v TE HEI [2021] NZHC 3485 [16 December 2021]

[3] The home was purchased early in their relationship for $330,000. Mr Bradford has been living in the home since the separation. It was valued in November 2017 at
$395,000, and in December 2020 at $600,000.

[4] Mr Bradford submits that, in the particular circumstances of this relationship, relationship property, namely the home, should be apportioned consistent with their financial contributions to the equity of the home. He analyses their contributions as being approximately 80 per cent from him and 20 per cent from Ms Te Hei. He also argues that the value of Ms Te Hei’s interest in the home should be valued as at separation rather than as at the hearing. He seeks the opportunity to purchase Ms Te Hei’s share of the home.

[5] Ms Te Hei says the financial contributions of the parties to the relationship could reasonably be assessed as 60/40 in favour of Mr Bradford but non-financial contributions to the relationship should be assessed as 60/40 in her favour. She says the parties’ contributions to the relationship should be assessed as 50/50 overall. She seeks an order that the home be sold but with Mr Bradford permitted to purchase and the net proceeds of sale to be divided in accordance with the Court’s determination as to contributions. She claims the value of her share should be based on the present value of the property. She also says Mr Bradford should account to her for a share of the net notional rental that could have been obtained from the property from the time the parties separated, after deduction of the mortgage payments, rates and insurance paid by Mr Bradford over the same period. She acknowledges that Mr Bradford paid a credit card debt of $5,150 after the separation. Ms Te Hei accepts she should account to Mr Bradford for her…

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 Bradford v Te Hei

Details

AGLC: Bradford v Te Hei [2021] NZHC 3485
Case: [2021] NZHC 3485
Decision Date: 16 December 2021

CaseChat Overview and Summary

The High Court was required to determine the respective shares of the parties in a property that they had jointly purchased during their relationship. The relationship was of short duration and, under the Property (Relationships) Act 1976, an order could not be made unless the Court was satisfied that the applicant had made a substantial contribution to the relationship and that failure to make the order would result in serious injustice. The parties had agreed that they were to share in the equity of the property in the proportions 80/20 but had been unable to reach agreement as to how their respective shares were to be calculated. The Court found that the assumption of a joint liability on a mortgage to acquire property did not necessarily have to be treated as an equal contribution by both parties as to half the amount borrowed. In the particular circumstances of this case, the Court concluded that the parties were to share in the equity of the property in the proportions 60/40. The Court considered that the value of the property to be apportioned was to be its value at the date of hearing. It further concluded that the value of the home should be updated to reflect any diminution in value due to the delay in finalising the settlement. It was also necessary to compensate Mr Bradford for the outgoings he had paid on the property since the separation of the parties and to make an appropriate adjustment for the reduction in the mortgage debt that had occurred. The Court held there would be serious injustice to both parties if it did not make appropriate orders under the Property (Relationships) Act.

The Court directed that the parties were to share in the equity in the home in the proportions 60/40. It ordered that, if Mr Bradford elected not to purchase Ms Te Hei’s share in the home, an updated valuation of the home was to be obtained and the home marketed for sale. The Court further directed that, if Mr Bradford elected not to purchase Ms Te Hei’s share, then the net proceeds of sale were to be apportioned between the parties in the proportions 60/40, less certain adjustments. It further directed that the parties were to bear their own costs for these proceedings.

Orders