Feck v Parohinog - [2016] NZHC 2246

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-813 [2016] NZHC 2246

BETWEEN
DIWA LAPURA FECK

Plaintiff

AND

ELSA LAPURA PAROHINOG Defendant

Hearing: 18 August 2016

Appearances:

S A McKenna and J A Alchin-Boller for the Plaintiff
S N Cameron, litigation guardian for the Defendant

Judgment:

23 September 2016

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 23 September at 10.00 am
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………

Counsel/Solicitors:
S A McKenna, Grantham Law, Hamilton
J A Alchin-Boller, Grantham Law, Hamilton
S N Cameron, Barrister, Hamilton

FECK v PAROHINOG [2016] NZHC 2246 [23 September 2016]

Introduction

[1] The plaintiff and defendant are respectively aunt and niece. Both are Filipino New Zealanders. They were formerly co-owners in equal shares of a Hamilton property which has since been sold. The net proceeds of sale after repayment of mortgages is a modest $92,236.54 of which $30,000 has already been paid to the plaintiff in terms of interim orders. They cannot agree to the division of the balance of the proceeds. Having formerly been close, they now no longer speak. The defendant is consumed by conspiracy theories to the point that a litigation guardian was appointed in respect of the proceedings. She blames the plaintiff for the loss of her former job with ANZ Bank. It was clear from her oral evidence that she regards her claim to 50 per cent of the proceeds as in part recompense for her lost career.

[2] By agreement between counsel, the sole issue which I am required to determine is a factual one in terms “was the property transferred to the defendant on terms that she was to hold her interest as tenant in common in equal shares on trust for the plaintiff”.

Background

[3] In 1997 the plaintiff and her then husband, Mr Michael Feck, purchased a property at 9 Edwin Street, St Andrews, Hamilton. They had two young children at the time, Ashley born 1990 and Shane born 1993, in respect of whom Ms Feck was the primary caregiver.

[4] In early 2007 the plaintiff and her husband began to experience difficulties in their marriage and agreed to an amicable separation. As at the date of separation the property had an agreed value of $368,000. Existing bank debt was $126,621 with the result that Mr and Mrs Feck had equity of approximately $120,000 each.

[5] Although the children were at that stage teenagers Mrs Feck did not want to disrupt their home life and was anxious to purchase, if she could, her husband’s share in the property so that she could remain living there with the children post- separation. In order to effect that purchase and refinance existing debt, total borrowings of approximately $247,000 were required.

[6] At the time the plaintiff had a job with Health Care New Zealand Limited as a relief support worker. Although on occasions she would work fulltime (and indeed in excess of 40 hours per week) her minimum…

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 Feck v Parohinog

Details

AGLC: Feck v Parohinog [2016] NZHC 2246
Case: [2016] NZHC 2246
Decision Date: 23 September 2016

CaseChat Overview and Summary

This case is a dispute between aunt and niece, DIWA LAPURA FECK (Plaintiff) and ELSA LAPURA PAROHINOG (Defendant) over the division of net proceeds from the sale of a Hamilton property. The property had been co-owned by the Plaintiff and her husband, Mr. Michael Feck, before their separation. The Plaintiff and Defendant had discussed the possibility of the Defendant purchasing Mr. Feck's share of the property, which would enable the Defendant to move to Hamilton and live with the Plaintiff and her children. The Plaintiff would then be able to continue living in the property with her children post-separation.

The sole issue the court had to determine was whether the property was transferred to the Defendant on terms that she was to hold her interest as tenant in common in equal shares on trust for the Plaintiff. The court found that the Defendant held her share on trust for the Plaintiff and ordered that the net proceeds of sale be paid to the Plaintiff exclusively. The reasoning behind this decision was based on the Plaintiff's approach to the transaction, the discussions and arrangements between the parties, and the Defendant's conduct following the transfer of the property. The court found that the Defendant had accepted the trust arrangement at the time she entered into the agreement for sale and purchase.

Orders