Commissioner of Police v Cotton
[2019] NZHC 1580
•8 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2016-404-0658
[2019] NZHC 1580
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
EDDY RAE COTTON
First respondent
SHEREE DENA EDWARDS
Second respondent
Hearing: 13-14 June 2019 Appearances:
M R Harborow and L J Fraser for the applicant No appearance for the first respondent
S P H Elliott for the second respondent
Judgment:
8 July 2019
JUDGMENT OF JAGOSE J
This judgment is delivered by me on 8 July 2019 at 3.30pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
Shane Elliott, Barrister, Auckland
COMMISSIONER OF POLICE v COTTON & ANOR [2019] NZHC 1580 [8 July 2019]
[1] The second respondent – despite the proceeding’s entitulement and consistent earlier documents, referred to by the surname “Cotton” on the present application – seeks relief from a civil forfeiture order made under the Criminal Proceeds (Recovery) Act 2009 (the “2009 Act”) against the first respondent, Eddy Cotton, on 1 May 2018. For convenience, I refer to the respondents by their first names.
Background
[2] That forfeiture order approved settlement between the Commissioner and Eddy of the Commissioner’s application against him for forfeiture of, among other things, a property at 38 Pooks Road in Auckland’s Ranui as “tainted property”, being acquired or derived through significant criminal activity.1 Eddy consented to the property’s forfeiture.
[3] Other forfeiture orders approved settlement between the Commissioner and Sheree of the Commissioner’s application against both Eddy and Sheree for restraining orders in relation to other property held separately by each of them. Sheree consented to that property’s forfeiture in relation to the property she held. Eddy’s consent to the forfeiture order consented also to forfeiture of such of that property as he held.
[4] Sheree now seeks relief in relation to the Pooks Road property on grounds she has an interest in it as relationship property in terms of the Property (Relationships) Act 1976 (the “1976 Act”); she has not unlawfully benefited from significant criminal activity relating to that property; and, without relief, she and her children are reasonably likely to be caused undue hardship. In all those respects, she relies on ss 62 to 67 of the 2009 Act.
[5] The Commissioner denies each of those grounds, and adds – as a respondent in the proceeding – Sheree is not entitled to avail herself of such relief.2
1 Criminal Proceeds (Recovery) Act 2009, s 5 (definition of ‘tainted property’).
2 The Commissioner initially opposed Sheree’s application on grounds she was estopped by her settlement with the Commissioner from bringing the application; her application was “wholly void” as brought to ‘defeat, avoid, prevent, or impede’ the Act’s operation; and the Commissioner was mistaken in entering settlement with her, such that their settlement should be varied to preclude her from applying for relief or cancelled. In Commissioner of Police v Cotton [2018]
Is Sheree relevantly a “respondent”?
[6]I address the last point first.
[7] Part 2, subpart 3, of the 2009 Act addresses civil forfeiture orders, being orders to forfeit property derived from significant criminal activity, or representing the value of a person’s unlawfully derived income.
[8] Section 62(2) entitles “[a] person (other than the respondent) who claims an interest in the property to which the civil forfeiture order relates [to] apply for an order for relief”. Section 5 defines ‘respondent’ as meaning “in relation to a … forfeiture order that has been made, the person in relation to whom that order is made (if any)”.
[9] The person in relation to whom the 1 May 2018 forfeiture order was made was Eddy. Only he entered into a settlement with the Commission as to the Pooks Road property, this Court’s approval of which gave rise to the 1 May 2018 forfeiture order. The subject assets are each registered to or held by Eddy, or found there.
[10] Nothing in the 1 May 2018 order purports to be made in relation to Sheree, who only appears in the proceeding’s entitulement (as Sheree Dena Edwards). Indeed, counsel’s joint memorandum, seeking this Court’s approval of the settlement under s 95, records “[t]he Commissioner and [Eddy] have agreed to settle the question of forfeiture of assets as between themselves” (emphasis added).
[11] Sheree therefore is a person “other than the respondent” claiming an interest in the Pooks Road property. She is not barred from seeking relief.
Relief under ss 66 or 67
[12]The thresholds for such relief are set out in ss 66 and 67:
66 Making order for relief from civil forfeiture order where person has interest and was not involved in significant criminal activity
(1) On receipt of an application for an order for relief from a civil forfeiture order under section 61 or 62, the High Court must grant the relief that the
NZHC 3110, Edwards J denied the last. Although Her Honour expressly did not consider the former grounds, the Commissioner did not pursue them before me.
Court considers appropriate if the applicant proves on the balance of probabilities that the applicant—
(a)has an interest, or would but for any civil forfeiture order have an interest, in the property to which the application relates; and
(b)has not unlawfully benefited from the significant criminal activity to which the application relates.
(2) The High Court may make an order for relief under this section at or after the time the associated civil forfeiture order is made.
67 Making order for relief from civil forfeiture order on grounds of undue hardship
(1) On an application for an order for relief from a civil forfeiture order under section 61 or 62, the High Court may grant the application if it considers that, having regard to all of the circumstances, undue hardship is reasonably likely to be caused to the applicant if relief is not granted.
(2) The circumstances the Court may have regard to under subsection (1) include, without limitation,—
(a)the use that is ordinarily made, or was intended to be made, of the property that is, or is proposed to be, the subject of the civil forfeiture order; and
(b)the nature and extent of any person’s interest in the property; and
(c)the degree, if any, to which the person had knowledge of the significant criminal activity to which the property relates; and
(d)the circumstances of the significant criminal activity to which the property or order relates.
—has Sheree an interest in the Pooks Road property?
[13] Section 5 defines ‘interest’ relevantly as meaning “a legal or equitable estate or interest in the property”. Sheree says the Pooks Road property is “relationship property” in terms of the 1976 Act, as it is property acquired by Eddy as her spouse or partner after their relationship began.3 The default scheme of the 1976 Act is each spouse or partner is entitled to share equally in a division of relationship property after the relationship ends.4 That is the contingent ‘interest’ claimed by Sheree in the Pooks Road property to support her application for relief.5
3 Property (Relationships) Act 1976, s 8(1)(e).
4 Section 11(1)(c).
5 Hayward v Commissioner of Police [2014] NZCA 625 at [25]–[26].
[14] Eddy acquired the Pooks Road property on 5 February 2015 from Terry Cotton Properties Limited (“TCP”). TCP’s sole shareholder and director, Terry Cotton, is Eddy’s brother. A 20 January 2015 deed between TCP and Terry Cotton and Eddy contends TCP acquired the Pooks Road property on 1 July 2005 “on trust, for the sole benefit of [Eddy]”. Eddy lived at the Pooks Road property throughout, and met associated mortgage, rates, power and water charges, and other expenses.
[15] Sheree married Eddy in 1998. They have two children, born in 2000 and 2001. They ceased living at the same address in 2000. Their marriage was dissolved by 2004. For the purposes of the 1976 Act, the marriage of two people ends if their marriage is dissolved.6
[16] But Sheree contends for her ongoing qualifying relationship with Eddy. In so doing, she is relying on the 1976 Act’s definition of the meaning of a de facto relationship:
2D Meaning of de facto relationship
(1) For the purposes of this Act, a de facto relationship is a relationship between 2 persons (whether a man and a woman, or a man and a man, or a woman and a woman)—
(a)who are both aged 18 years or older; and
(b)who live together as a couple; and
(c)who are not married to, or in a civil union with, one another.
(2) In determining whether 2 persons live together as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a)the duration of the relationship:
(b)the nature and extent of common residence:
(c)whether or not a sexual relationship exists:
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
(e)the ownership, use, and acquisition of property:
(f)the degree of mutual commitment to a shared life:
6 Property (Relationships) Act 1976, s 2A(2)(b).
(g)the care and support of children:
(h)the performance of household duties:
(i)the reputation and public aspects of the relationship.
In determining whether 2 persons live together as a couple,—
(a)no finding in respect of any of the matters stated in subsection (2), or in respect of any combination of them, is to be regarded as necessary; and
(b)a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
For the purposes of this Act, a de facto relationship ends if—
(a)the de facto partners cease to live together as a couple; or
(b)one of the de facto partners dies.
[17] Thus a key question is if Sheree and Eddy, in all the circumstances of their relationship, can be said to have been ‘living together as a couple’ at the time Eddy acquired Pooks Road. On the evidence before me, that is at 1 July 2005.
[18]The assessment is intensely factual, and not limited by the statutory criteria:7
The complexity and diversity of human nature and behaviour is such that many types of associations may properly fall into the category of a de facto relationship as envisaged by Parliament. For there to be a relationship there must be an emotional association between two persons. Some associations will clearly be de facto relationships such as where partners are living in the same accommodation, perhaps sharing sexual conduct and proclaiming that they are a de facto couple sharing their lives. At the other end of the scale two persons may simply be lovers living apart and without any special bond or affiliation or emotional association which would place their relationship into the category of a de facto relationship.
…
The test must inevitably be evaluative, with the Judge having to weight up as best he or she can all of the factors — not only those contained in s 2D, but also any others there may be — and applying a common sense objective judgment to the particular case. … Generalisations are to be avoided because every case is fact specific. For example, it might be thought that if a man and woman do not live together, nor have a sexual relationship, nor ever plan to live together, nor have children, then they could not be in a de facto relationship. Yet that was the factual situation involved in the case of Horsfield v Giltrap (2001) 20 FRNZ 404; (2001) 1 NZSC 40,541 (CA) (a constructive
7 Scragg v Scott (2006) 25 FRNZ 942 (HC) at [31] and [37].
and express trust case) and the parties regarded themselves as a close and devoted couple who had committed themselves to each other and accumulated joint assets and were:
… a partnership between a man and a woman, who professed love for each other and were prepared to commit to each other their emotional and financial resources.
Although it was said that that was “not a de facto union” we have no doubt that it would have qualified as a “de facto relationship” under the present legislation if such had been in force.
[19]In making that assessment, it is relevant:
(a)Eddy and Sheree have had a relationship with each other for the past 22 years, including as parents to their two children. Eddy’s affidavit evidence baldly is he is “in a relationship with [his] de-facto partner”, although police report he said to them “he had been apart from his wife for at least 12 years and that they were divorced about two years after their marriage”;
(b)married in 1998, they initially lived together with Eddy’s mother, until shortly after the birth of their first child in 2000. Sheree since has maintained her (and the children’s) separate residences, including an address to which Eddy was bailed in 2004, until moving into Pooks Road on Eddy’s release from custody in 2018;
(c)Sheree has a monogamous sexual relationship with Eddy;
(d)Sheree and Eddy largely have been financially independent of each other, her income principally being derived from the sole parent benefit since mid-2000 until mid-2014, on her entry to the workforce. An exception is Eddy’s provision of some $40,000 for acquisition of a car in 2012, and $20,000 in 2014, invested in Bonus Bonds. But the police analysis of her finances is her expenditure is larger than her income, the inference being the difference being obtained from Eddy;8
8 Such provision was the basis for the Commissioner’s forfeiture orders obtained against Sheree by consent, by which she was only to be paid $5,000 from the forfeited property.
(e)similarly, although Sheree contributed labour to maintenance of Pooks Road, generally her ownership, use and acquisition of property has been separate from Eddy’s. They made no joint purchases. They each had their own vehicles, electronic equipment, and whiteware. Eddy says, even in support of Sheree’s application for relief, Pooks Road was “essentially” his, “my own house”, and “[i]f the house is forfeited, I will not have a place to live”;
(f)Sheree and the children spent time at Pooks Road, mainly at weekends and longer during school holidays, to visit and stay with Eddy. The frequency of that occupation intensified in its description through Sheree’s affidavits. But, except for the financial provisions referred to at (d) above, there was little evidence Eddy played any material role in the children’s care or support. There is evidence of some child support payments being made. But he has an outstanding liability from 2002 to 2019 for payment of non-custodial child support in excess of $27,000, which he said he was “unable” to pay at the time. Although Sheree describes them as having “shared custody of the children without condition”, that was not the result of any formal determination, and she was “ultimately responsible for looking after the kids and paying rent on a separate property”;
(g)Sheree performed some household duties at Pooks Road, when visiting or staying, and did all Eddy’s laundry in any event, but there is no evidence Eddy performed any duties at her residence(s), although he visited them there from time to time; and
(h)there is no public evidence of any relationship between Sheree and Eddy, or from any third person of such a relationship, although Sheree says:
Both our families were aware of our arrangement and, even though it may have seemed strange from the outside, they understood and agreed that we should do what best worked for us, our relationship and our kids.
[20] Except for what Eddy says at [19](a) and (e) above, the evidence asserting the de facto relationship is principally from Sheree’s primary affidavits. In reply, Sheree also explains:
In around 2003/2004 Eddy and I made the decision to divorce. This was Eddy’s choice as he felt the “marriage” title was affecting our relationship and that removing it would make things better. It was not a reflection on the nature of our relationship, which while perhaps unconventional, remained committed and which we wanted to preserve in part for the benefit of our children.
[21] What I cannot see from that evidence is any sense of Eddy’s and Sheree’s “mutual commitment to a shared life”. While one of the statutory criteria (none of which “is to be regarded as necessary”), in the absence of more orthodox indicia, the phrase nonetheless is accepted as neatly articulating the core of what is meant by a de facto relationship.9
[22] Eddy’s evidence is silent as to his commitment. And Sheree’s evidence is more given from aspirational hindsight, and heavily reliant on Eddy having mental health issues justifying their separate arrangements. Her evidence is conclusory: “we nonetheless continued to have a committed relationship”. There is no supporting documentation. And there is no independent observation of the relationship, not even from their children or other family members.
[23] As a matter of statutory interpretation, any de facto relationship must exclude the period of a marriage.10 Sheree is not specific about the date of the divorce. Eddy says they divorced some two years after their marriage, so 2000; Sheree says it was 2003 or 2004. She has not provided any material detail about her and Eddy’s activities during the period between divorce (whenever that was) and Eddy’s acquisition of Pooks Road in 2005. It is telling the most specific detail of their marriage’s intercession in their subsisting relationship only arises in her ‘reply’ affidavit. But it
9 See, for example, Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA) at 181 (“a mutual commitment to the maintenance of their relationship”); H v Y FC Dunedin, FP 012/287/98, 11 August 2004) at [26] (“a commitment to a shared life and demonstrating that by their conduct”); G v B [2006] NZFLR 1047 (HC) at [37] (“a fully committed relationship”); B v F [De facto relationship] [2010] NZFLR 67 (HC) at [51] and [68]; and DM v MP [2012] NZFLR 385 (HC) at
[27] (“a [mutual] commitment to sharing life is normally required of a de facto relationship”). Cf, PZ v JC [2006] NZFLR 97 (FC) at [47]. See also Zhixiong Liao “Finding Certainty in Determining Whether a ‘De Facto Relationship’ Exists: An Impossible Task?” (2015) 21 Canterbury Law Review 112.
10 Property (Relationships) Act 1976, s 2D(1)(c).
was always for Sheree to prove on the balance of probabilities she had a qualifying interest.11
[24] The Commissioner submitted a number of Sheree’s annual declarations as to her entitlement to be paid benefits – for the years ending 31 March 2001, 2002 and 2005 – she had not married nor was “living with a person in a relationship in the nature of marriage”. (The same negative answer was stipulated when the form changed by 2012 specifically to ask of a partner: a spouse, civil union partner, “or a person … with whom you have a de facto relationship”).
[25] I do not think those answers, being sought for a different purpose, are determinative here. But, in answer to my questions of her as to that purpose, Sheree said:
At the time when I first went to WINZ it was quite a traumatic time, it was, I honestly I thought I was gonna have to look after myself and I did what I felt was right at the time. ‘Cos we were at a really difficult stage at that point. I always thought in my mind that it wouldn’t be there, I wouldn’t be on the benefit for long and I’d eventually sort things out with my husband and then go back, but it just it never ever got to that every time we were close to trying to sort things out so that we could come together and live under the same roof it just didn’t happen, it didn’t happen.
While that refers to a period beginning in mid-2000 when Eddy and Sheree remained married, there is no evidence of how or when that position changed, and to what, such that a de facto relationship could be discerned after divorce in 2003 or 2004, before Eddy’s acquisition of Pooks Road in 2005. Certainly the risk of having “to look after myself”, even (or perhaps especially) in the context of a failing marriage, is antithetical to a continuing mutual commitment to a shared life together.
[26] From all the evidence of the circumstances of their relationship, I am not satisfied it is “more likely than not” Eddy and Sheree were in a de facto relationship during the period after their divorce and before Eddy’s acquisition of Pooks Road.12 She has not proven on the balance of probabilities she has an interest in Pooks Road sufficient to qualify for relief.
11 Criminal Proceeds (Recovery) Act 2009, s 66(1).
12 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [102]; and
Spellacey v Solicitor-General (2003) 21 CRNZ 140 (CA) at [58].
—has Sheree unlawfully benefited from significant criminal activity?
[27] Given that finding, I do not need to consider if Sheree also has proven on the balance of probabilities she “has not unlawfully benefited from the significant criminal activity to which the application relates”.13
[28] But I incline to the view Sheree has not crossed that threshold. Section 7 provides:
… a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).
[29] It is unclear how, if at all, the unlawful benefit is intended to link with the qualifying interest. Under s 66(1)(a), the interest is “in the property to which the application relates”; under s 66(1)(b), the benefit is “from the significant criminal activity to which the application relates”. The application relates to a civil forfeiture order, which is granted in relation to “tainted property” – that is, property that has been “acquired as a result of …; or directly or indirectly derived from, significant criminal activity”.14
[30] Given the civil forfeiture order, Pooks Road is tainted property. Sheree’s qualifying interest in it would be to derive a benefit from it. But, if in a de facto relationship at the time Eddy acquired Pooks Road, she derived that benefit at the time of the acquisition. Her relevant knowledge may be as at the time of that acquisition. As with the state of their relationship, there also is little if any material evidence of her actual or imputed knowledge at that time. Given the elapse of time, there are no contemporary bank records. Most of the evidence concentrates on what Sheree knew or should have known from Eddy’s occupation of the Pooks Road property.
[31] Sheree’s evidence of the earlier period was essentially Eddy had been bailed to her address on charges of cannabis cultivation and related offending in February 2004 (although not tried on those charges); had fallen out with his partner in their
13 Criminal Proceeds (Recovery) Act 2009, s 66(1)(b).
14 Section 5, definition of ‘tainted property’.
landscaping business the previous year; but continued landscaping on his own, as well as doing occasional odd jobs, and being active on Trade Me – all primarily on a cash basis, which he did not declare to the Commissioner of Inland Revenue. Sheree said he “always had cash”, including to buy her and the children $20,000 of Bonus Bonds (although she said she was satisfied that money came from Eddy’s inheritance some years earlier).
[32] Eddy’s evidence was he saved the deposit for Pooks Road from his landscaping business, which he estimated returned him a net $70,000-$80,000 annually. Notably, this was also during the period he was “unable” to pay liable parent contributions. And, although Eddy contended to have continued his landscaping business from 2005 to 2016, the police could not identify any equipment in his possession correlating with such activity.
[33] Sheree’s relevant knowledge may also be that obtained after any innocent obtaining of benefit, which enures to the point of any subsequent division of property. Again, evidence of Sheree’s knowledge is sparse. She was sufficiently familiar with the property to be able to recover Eddy’s personal possessions after the police warrant to search the premises expired, including from a hiding place under the stove.
[34] But Eddy had established a significant cannabis cultivation operation in a garage under the house at Pooks Road, external access to which had been secured a few years into Eddy’s occupation of the property, and alternative access obtained internally through a trapdoor covered by a rug in the living area and down a ladder. Sheree’s evidence such was Eddy’s “own personal space … his private space”, “[h]e worked down there and that was his private space to be alone”, which she never entered as it was “out of bounds”.
[35] All that sits uncomfortably with Sheree’s and the children’s visits and stays at the property – most intensively described as “most every other weekend, school and Christmas holidays, and other special occasions when we could” – including Sheree’s conduct of household and maintenance work extending to installation of significant drainage from the house over a period of months, without at least questioning Eddy’s activities in its basement. She said variously “he wasn’t downstairs when I was there,
he was with us”; “he rarely went down there when the kids and I were staying”; and that was where he went “to have some time alone when he was feeling unwell” (emphasis added). But there is no evidence anyone other than Eddy lived in the house. It also sits uncomfortably with Sheree’s evidence of her arguments with Eddy in the wake of his being bailed to her address on cannabis cultivation charges: “[H]e shouldn’t have been doing it, I didn’t know he was doing it … I assumed that was the end of it at that point”.
[36] Especially given that warning, Sheree’s observations “there was many odd things in our relationship … there were many weird things that happened between him and I” is to be wilfully blind as to Eddy’s conduct of, and the source of his funds in, significant criminal activity. The burden is on Sheree to prove on the balance of probabilities she did not know her interest in the Pooks Road property, including its mortgage and maintenance, was derived from significant criminal activity. Wilful blindness qualifies as such knowledge.15
[37] Had I been required to determine the point in terms of s 66, I would not have been satisfied it was more likely than not Sheree lacked knowledge her interest in the Pooks Road property was derived from significant criminal activity.
—is Sheree likely to suffer undue hardship without relief?
[38] Had Sheree proven s 66’s criteria on the balance of probabilities, I “must grant” such relief as I thought appropriate. Section 67 nonetheless entitles me to grant relief if I consider, without it, “having regard to all of the circumstances, undue hardship is reasonably likely to be caused to the applicant”. A critical aspect under s 67 is the extent of knowledge of significant criminal activity.16 But Sheree’s lack of a qualifying interest means I also need not consider if she is likely to suffer undue hardship without relief under s 67.17
15 Vincent v Commissioner of Police [2013] NZCA 412 at [52]–[53].
16 Section 67(2)(c).
17 Commissioner of Police v Winsor [2014] NZHC 161 at [56], citing Commissioner of Police v Li
HC Tauranga CIV-2010-470-48, 3 March 2011 at [51].
[39] The relevant circumstances for my consideration under this head would have included:
(a)as recorded in my minute of 14 June 2019, Sheree has consented to rescission of the order made by van Bohemen J at [11(f)] of his minute dated 5 September 2018 (extended by Edwards J at [2] of her minute dated 18 October 2018, and [36] of her judgment dated 29 November 2018) in this proceeding, entitling the Official Assignee to proceed with the sale of the Pooks Road property in accordance with the 1 May 2018 civil forfeiture order; and
(b)the subject property therefore is the balance of the proceeds from sale of the now-unencumbered property, contemplated to be in the vicinity of $700,000. I have no evidence of what use is intended to be made of such money in Eddy’s and Sheree’s hands, but infer it may be used in some manner to substitute for the loss of the house.
[40] The threshold for relief under s 67 is significant: it is hardship “grossly disproportionate” to an interest knowingly derived from significant criminal activity.18 (Such knowledge is the inference open to being drawn from Sheree’s failure to prove s 66(1)(b).) Alternatively, it may be hardship amounting to extreme and undue want or privation.19
[41] Had she a qualifying interest, I would not have considered Sheree is likely to suffer undue hardship. There is no evidence of what hardship would be caused to Sheree and her children if she lacked access to funds derived from significant criminal activity, and certainly not to a level of extreme privation. The evidence addressed retention of the Pooks Road property as Eddy’s and Sheree’s residence, they having little otherwise in the way of assets; even so, Sheree deposes to a modest income and current family tax credits. Without relevant evidence, I have no basis for my consideration.20
18 By analogy from Lyall v Solicitor-General [1997] 2 NZLR 641 (CA) at 647.
19 Commissioner of Police v Nelson HC Auckland CIV-2010-404-989, 30 July 2010 at [75], cited in
Commissioner of Police v Winsor, above n 17, at [57].
20 By analogy from R v Thompson CA404/04, 19 October 2005 at [15].
Other matters
[42] Given my primary conclusion, I do not address other matters raised by the Commissioner, including if the Pooks Road property may have constituted Eddy’s and Sheree’s family home, in which as partners they would have been entitled equally to share on division of relationship property,21 or if any qualifying interest Sheree may have in the Pooks Road property could only extend to “untainted property” (of which the Commissioner says here there was none).22
Result
[43]Sheree’s application is dismissed.
Costs
[44] Costs are reserved for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by:
(a)the Commissioner within ten working days of the date of this judgment;
(b)Sheree within five working days of service of the Commissioner’s memorandum; and
(c)the Commissioner strictly in reply within five working days of service of Sheree’s memorandum.
—Jagose J
21 Property (Relationships) Act 1976, s 11(1)(a).
22 Hayward v Commissioner of Police [2014] NZCA 625 at [37].
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