Brown v Akulinin - [2020] NZHC 1061

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

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2384

[2020] NZHC 1061

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of an appeal from a decision of the Family Court at Auckland on 25 September 2019

BETWEEN

NATALIA ALEXANDROVNA BROWN

Appellant

AND

OLEG FATEEVICH AKULININ

Respondent

Date of hearing: 19 May 2020

Appearances:

B N Snedden and J M Gandy for the appellant B D Hayes for the respondent

Date of judgment:

20 May 2020

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 20 May 2020 at 4.00pm.
Pursuant to Rule 11.5 of the High Court Rules

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Ben Snedden Barrister, Auckland Barry Hayes Barrister, Auckland Thomas & Co, Auckland

BROWN v AKULININ [2020] NZHC 1061 [20 May 2020]

[1] Natalia Brown appeals against the decision of Judge T H Druce in the Family Court at Auckland on 25 September 2019, setting aside her 23 January 2015 agreement with Oleg Akulinin as to the division of their property.1 As in the agreement, in this judgment I refer to the parties respectively as ‘Natalia’ and ‘Oleg’.

Background

[2] Natalia and Oleg married each other in Russia’s Vladivostok on 9 December 1999. Their son, Petr, was born on 10 April 2000. (Natalia has another son, Pavel, from a previous relationship, born on 16 July 1992, who appears included in the family.)

[3] Natalia and Oleg separated by October 2014. They entered the 23 January 2015 agreement (the “agreement”), “in full and final settlement of all claims and rights which Oleg and Natalia have or may have against each other in respect of property”. The agreement predominantly provided for Natalia to take a 1999/2000th share in their previously jointly-owned family home in Auckland’s Avondale, Oleg the 1/2000th balance, and Natalia the whole of their joint bank account said to amount to some
$37,000. Separately-held bank accounts are the parties’ separate property.

[4]Under the heading ‘Family Home’, clause 4 of the agreement specified:

Oleg records that the Family Home was purchased entirely from contributions made by Natalia’s family and that he wishes for Natalia to remain in residence at the Family Home so as to provide a stable Family Home for the Parties’ children.

The agreement also asserted its terms were agreed, on the basis of the parties’ full disclosure to each other, as “their own agreement on the extent and value of relationship assets … compromised by both parties and intended to achieve a division that they consider to be fair”. They provided informed waiver of any requirement for independent valuations, and acknowledged each obtaining and understanding independent legal advice.

[5] In June 2016, Natalia acquired Oleg’s remaining share in the family home, Oleg realising…

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 Brown v Akulinin

Details

AGLC: Brown v Akulinin [2020] NZHC 1061
Case: [2020] NZHC 1061
Decision Date: 20 May 2020

CaseChat Overview and Summary

Natalia Alexandrovna Brown appeals against a decision of the Family Court at Auckland, which set aside a 2015 agreement she had with Oleg Fateevich Akulinin regarding the division of their property. The High Court must assess whether the Family Court erred in setting aside the agreement. The agreement provided for Natalia to receive the majority of their jointly-owned family home and their joint bank account, while Oleg received a minor share of the home. The Family Court found the agreement to be unfair and unreasonable, and set it aside. The court found that the agreement was unfair due to its substantial unfairness at the time it was entered into and Natalia's subsequent conduct being inconsistent with the core purpose of providing a stable family home for their children. The court also found that the agreement did not fully reflect the contributions made by both parties to the purchase of the family home.

The High Court found difficulty with the Family Court's conclusions and considered that the better course of action was to remit the matter to the Family Court for rehearing on all the evidence. The High Court found that the Family Court erred in concluding that Natalia's advance to Gordon was unsecured, and that it constituted relationship debt to her. The High Court also found that the evidential inadequacies made it impossible to determine whether giving effect to the agreement would cause serious injustice to Oleg. Therefore, the decision of the Family Court was quashed, and the case was directed to be reheard. Natalia is entitled to costs and disbursements on her appeal, unless the parties otherwise agree.

Orders