IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-475
[2018] NZHC 881
IN THE MATTER of the Property (Relationships) Act 1976 BETWEEN
MELE FAALINO HAU
Appellant
AND
OSAI HAU
Respondent
Hearing: 21 March 2018 Counsel:
S T Fonua for Appellant
M Tu’ilotolava for Respondent
Judgment:
1 May 2018
JUDGMENT OF DUFFY J
This judgment was delivered by me on 1 May 2018 at 3.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel:
Sione T. Fonua, Auckland Mele Tu’ilotolava, Manukau
HAU v HAU [2018] NZHC 881 [1 May 2018]
[1] The appellant Mele Faalino Hau appeals against a finding of the Family Court that it has no jurisdiction to hear her application under s 23 of the Property (Relationships) Act 1976 (the PRA) for an order determining the respective shares of each partner in the relationship property.1
[2] The appeal raises the question of whether a surviving spouse can seek to obtain such an order against someone who has acquired what may otherwise be relationship property through the right of survivorship.
Facts
[3]Mrs Hau is the widow of the late Tevita Hau.
[4] Tevita Hau was previously married to another woman with whom he had children. On 21 October 1981, the pair purchased a home in Mangere (the Mangere property). After Tevita Hau and his first wife separated they agreed that he would buy her share of the Mangere property with the help of his brother, Osai Hau. Together the brothers borrowed the necessary funds from the ASB Bank. Registered title in the Mangere property was transferred to them both as joint tenants. They both lived in the Mangere property.
[5] Then in February 1993 Tevita Hau married Mrs Hau. During their marriage, they lived at the Mangere property with Osai Hau. This arrangement ended with Tevita Hau’s death on 11 May 2014. Mrs Hau remained living at the Mangere property until 25 December 2015 when she moved out, after an altercation with Osai Hau’s children to which police were called.
[6] The joint tenancy in the Mangere property was Tevita Hau’s only substantial asset. Because the brothers were registered as owners of the property under a joint tenancy, on Tevita Hau’s death ownership in this property was seen to pass by survivorship to Osai Hau.
1 MFH v OH [2016] NZFC 11005.
[7] As matters stand Tevita Hau’s estate is small and may be distributed without the appointment of an administrator. Thus, no administrator has been appointed, which also means there is no administrator who can be joined in this proceeding.
[8] Mrs Hau is looking for a legal process that will permit her to undo the effect of survivorship. If she can find a way that permits the Court to order the joint tenancy become a tenancy in common, Tevita Hau’s share of that tenancy will then pass to his estate. At that point Mrs Hau will be better able to maintain…
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