Introduction [1] Background [3] Summary of claims [14] The nature of the constructive trust claims [17] The key issue [21] The claims in equity to the London properties

Sections 4 and 7 [24]

Private international law [49] The in personam exception [55] Overview [72] Conclusion on jurisdiction [78] Conclusion on private international law [82] The relationship property claim [83] The start of the de facto relationship [85] The assets [95] The Winchmore debt to the husband of $210,000 [100] The $4,265.25 interest on the Winchmore debt [107] Monies used to purchase Avondale Road [108] The revolving credit account [110] The E-Saver account [114] Section 18C adjustment [116] The $7,133 interest on the revolving credit account [121] The $8,701.42 and $5,672.92 credit card repayments [123] Result [124]

Introduction

[1] The plaintiff Deanne Burt and the defendant Yiannos Yiannakis lived in a de facto relationship for some years. They married in 2008 and separated in 2012. Their claims in this Court are brought both under the Property (Relationships) Act
1976 (the Act), in the form of proceedings initiated by Mr Yiannakis in the Family Court and transferred to this Court, and in the form of separate proceedings filed in this Court by Ms Burt in which she seeks relief in equity.

[2] The particular feature of the case, which has led to these proceedings being filed in this way, is that the couple either jointly or separately own significant properties in London, and one in New Zealand, and have or have had significant bank accounts in both the United Kingdom and New Zealand. The general rule, accepted by Ms Burt, is that this Court has no jurisdiction to determine relationship

property claims between them in respect to London real estate. However, it is claimed that it is open to her to bring claims in equity arising out of their London dealings.

Background

[3] Ms Burt and Mr Yiannakis first met in New Zealand in March 2001 when Mr Yiannakis was visiting New Zealand on a backpacking holiday. Mr Yiannakis’ home was in London and Ms Burt lived in Auckland. He was 31 and she was 26. In July 2001 they travelled together to London. Ms Burt initially stayed with a friend, but on 1 August 2001 she and Mr Yiannakis began living together in a house owned by Mr Yiannakis’ mother…

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 Burt v Yiannakis

Details

AGLC: Burt v Yiannakis [2015] NZHC 1174
Case: [2015] NZHC 1174
Decision Date: 28 May 2015

CaseChat Overview and Summary

In the case of Burt v Yiannakis, the plaintiff, Deanne Margaret Burt, and the defendant, Yiannos Yiannakis, were in a de facto relationship, married in 2008, and separated in 2012. Ms Burt initiated proceedings in the Family Court, which were later transferred to the High Court. She sought relief in equity in relation to properties in London and New Zealand. The case raised the question of whether the court had jurisdiction to determine claims in equity relating to overseas immovables in the property relationship context. The court held that the Property (Relationships) Act 1976 did not apply to foreign immovables, and therefore, the common law and equity did not apply either. The court also held that the in personam exception to the Moçambique rule did not apply to the equitable claims. The court concluded that it would be wrenching the purpose and text of the Act to use it to allow claims against foreign immovables by the back door of an equitable claim. The court dismissed all equitable claims relating to foreign immovables. In relation to the relationship property claim, the court determined that the de facto relationship began in August 2001. The court made various findings on the classification and division of assets, including the Winchmore debt to the husband of $210,000, which was found to be relationship property. The court also made an adjustment under s 18C by Mr Yiannakis paying or giving credit to Ms Burt half the sums he took of $86,000 from the revolving credit account and $256,200 from the E-Saver account. The court reserved the question of costs and directed the parties to file submissions within specified timeframes.

Orders