Burt v Yiannakis - [2014] NZHC 1488

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-003251 [2014] NZHC 1488

BETWEEN
DEANNE MARGARET BURT

Plaintiff

AND

YIANNOS YIANNAKIS Defendant

Hearing: 6 June 2014

Appearances:

R J MacDonald and C D Boell for the Plaintiff
E M Eggleston for the Defendant

Judgment:

30 June 2014

JUDGMENT OF GILBERT J

This judgment is delivered by me on 30 June 2014 at 4.30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

BURT v YIANNAKIS [2014] NZHC 1488 [30 June 2014]

Introduction

[1] The parties to this proceeding, both of whom are resident in New Zealand, are in dispute over the division of property acquired during the course of their relationship, including real estate in England. They lived together in a de facto relationship in England from 2001 to 2007 when they moved to New Zealand. They married in February 2008 and separated in June 2012. During the course of their relationship, five properties were acquired in the United Kingdom. The first three of these properties were purchased in Mr Yiannakis’ sole name. One of these properties has now been sold. The remaining two properties in England are held in the joint names of the parties.

[2] Mr Yiannakis initiated Family Court proceedings under the Property (Relationships) Act 1976. Orders for division of relationship property are sought in these proceedings, including orders relating to real estate acquired by the parties in New Zealand. These proceedings have been transferred to this court.

[3] Ms Burt commenced the present proceeding advancing various claims in relation to the properties in England:

(a) First cause of action – Ms Burt seeks an account of rent and other income received by Mr Yiannakis in relation to the two properties acquired in England in the parties’ joint names. (Tower Terrace and Alexandra Road).

(b)Second cause of action – Ms Burt claims that a property at Ecclesbourne Close is held by Mr Yiannakis on a constructive trust for the parties in equal shares, or in such shares as the Court shall determine. Ms Burt seeks a declaration to this effect, equitable compensation and an accounting for rent and other income received in relation to the property from the time it was acquired in June 2002.

(c) Third cause of action – Ms Burt claims a similar interest and seeks similar relief based on an alleged constructive trust in respect of a

property at Willingdon Road that was purchased in Mr Yiannakis’ sole

name in August 2004.

(d)Fourth cause of action – Ms Burt seeks similar relief on the basis of an alleged constructive trust in relation to the property at Oxford Gardens where the parties lived from 2001 to 2006. This property was purchased by Mr Yiannakis prior to the relationship.

(e) Fifth cause of action – Ms Burt claims that in June 2013, after the parties had separated, Mr Yiannakis purchased another property in England (Avondale Road) with funds drawn from joint accounts in New Zealand and the United Kingdom.…

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 [2014] NZHC 1488
Case: [2014] NZHC 1488
Decision Date: 30 June 2014

CaseChat Overview and Summary

Deanne Margaret Burt and Yiannos Yiannakis were former partners who lived together in a de facto relationship in England and later in New Zealand. Their dispute concerns the division of property acquired during their relationship, including real estate in England. Yiannakis initiated Family Court proceedings under the Property (Relationships) Act 1976, seeking division of relationship property. Burt commenced the present proceeding, advancing various claims in relation to the properties in England. The legal issues in this case were whether the Property (Relationships) Act applied to the foreign immovables and whether the court had jurisdiction to determine Ms Burt's claims regarding these properties. The court held that the sharing regime under the Act did not apply to foreign immovables unless the parties agreed in writing that it was to apply. It was found that the Act did not displace the parties' rights in relation to foreign immovables. A New Zealand court does not have jurisdiction to determine the title to, or right to possession of, immovable property situated outside of New Zealand, but it could exercise jurisdiction in relation to claims between persons within the jurisdiction concerning personal obligations arising out of contract, trust, fraud or other unconscionable conduct. The application to strike out Ms Burt’s claims was dismissed, and the costs were reserved.

The court's decision was that the Property (Relationships) Act did not apply to the foreign immovables in question, and therefore, the claims concerning these properties could be determined by the court. The court found that it had jurisdiction to hear the claims based on alleged breach of trust giving rise to personal obligations to account or pay equitable compensation. The application to strike out Ms Burt’s claims was dismissed, and the costs were reserved. The matter was to be determined at trial after hearing all of the evidence.

Orders