Hau v Hau

[2018] NZHC 881

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 a claim against it. In this way, she hopes to obtain a legal interest in what she asserts was formerly the family home in which she lived with Tevita Hau. Because Osai Hau is now the sole owner of this property and therefore the person affected by any claim Mrs Hau may make against the property she has identified him as the person against whom she must bring her legal proceeding.

[9]                  Osai Hau disputes Mrs Hau has any basis for attempting to claim an interest in what he says is now a property in his sole ownership, through operation of law. He contends that insofar as Mrs Hau now seeks to rely on the PRA to achieve her end, she is misguided because the PRA can have no application to someone in his position.

Family Court decision

[10]              The Family Court treated Mrs Hau’s proceeding as in substance an application for division of relationship property, which she was out of time pursuing because she had failed to elect Option A in time.2 This led the Family Court to decide it had no jurisdiction to hear Mrs Hau. The Family Court also determined that because s 61 of the Land Transfer Act 1952 (LTA) provides that, unless the contrary was expressed, all persons who are transferees of land are deemed to be joint tenants with right of survivorship, this provision, in the light of s 10(d) of the LTA, trumped the application of the PRA.

2      See ss 62 and 68 of the Property (Relationships) Act 1976.

Mrs Hau’s aim

[11]              Section 88(1) permits a surviving spouse to apply for orders under s 25(1) and orders or a declaration under s 25(3) of the PRA. Section 25(1) of the Act permits the Court to make orders determining the respective shares of spouses in their relationship property and dividing the same between them. Section 25(3) permits the Court to make orders or declarations relating to the status, ownership, vesting or possession of any specific property as the Court considers just. As a preliminary step to making orders or declarations under ss 25(1) and (3), the Court must first classify the subject property as relationship property in accordance with the definitions given in s 8 of the PRA.3 Section 33 provides the Court with ancillary powers to give better effect to orders made under s 25. Those powers include the power in s 33(3)(e) to order the partition or vesting of any property.

[12]              Accordingly, the PRA provides a pathway in the case of inter vivos separations for spouse A to seek orders recognising that property which spouse B co-owns with a third party is nonetheless spouse B’s relationship property in which spouse A has an interest.4

[13]              The problem for Mrs Hau is that Tevita Hau is now deceased and accordingly his share has already passed by survivorship to Osai Hau. So, unless the PRA provides a way for her to unravel the effect of survivorship there will be no property against which her PRA claim can attach.

[14]              Mrs Hau effectively wants to use the provisions of the PRA to undo the effect of survivorship and either for the Court to determine the property includes relationship property in which she has a share or to order the return of Tevita Hau’s interest in the Mangere property to his estate. If she can achieve that aim she will then be in a position either to make a claim under either the PRA for division of the relationship property (Option A) or under the Administration Act 1969 for a share in Tevita Hau’s estate (Option B).5

3      Section 8 defines the categories of relationship property, which include the “family home whenever acquired”. Under s 2 the “family home” is defined as the dwellinghouse that either or both of the spouses use habitually or from time to time as the only or principal family residence.

4      See Dahya v Dahya [1991] 2 NZLR 150 (CA).

5      Tevita Hau died intestate and so his estate will be subject to the Administration Act 1969.

Approach on appeal

[15]              The appeal is by way of re-hearing and so subject to principles to be derived from Austin, Nichols & Co Inc v Stichting Lodestar.6

Discussion

[16]              In its original form, the Act applied to the division of what was then known as matrimonial property on separation. In 2002 the Act’s property-sharing provisions were extended to include division of what then became known as relationship property on the death of one of the parties to the relationship. Whilst the Act has sought to ensure the division of property on death follows much the same course as division of property on separation, Parliament has omitted to make express provision for how the Act can be applied to situations like the present.

[17]              Osai Hau contends that this means he takes all interest in the Mangere property by survivorship, which leaves little else for Mrs Hau to take. On this view, despite having lived for some 22 years with Tevita Hau in the house which he co- owned with his brother, Mrs Hau would then be left with no claim at all on this property. Because there is no other substantial property owned by Tevita Hau, there is no question of Mrs Hau being compensated under s11B for the absence of a family home.

[18]              Mrs Hau contends that Parliament cannot have intended the Act to provide differently for her as a surviving spouse than would be the case if she and Tevita had separated during his lifetime. In this regard, I note that Osai Hau’s counsel acknowledged at the hearing that had the marriage ended with the parties separating during Tevita Hau’s lifetime, it may then have been possible for Mrs Hau to bring PRA proceedings against him claiming a share in the Mangere property.

[19]              I agree that the scheme and purpose of the PRA aims to treat couples at the end of their relationship much the same whether that end be by death or separation.7 However, given the absence of any specific provision to deal with the present situation the question then becomes whether on a purposive reading of the PRA the statutory

6      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

7      Compare s 10A and s 10B.

language permits me to reach a view that would allow Mrs Hau to make the same type of claim that she could readily have made against Tevita during his lifetime.

Is Mrs Hau out of time to bring a claim under the PRA?

[20]              First, I shall deal with the argument that Mrs Hau is essentially attempting to make an Option A type claim under the PRA when she is out of time to do so. Sections 61 to 70 of the Act provide for a surviving spouse to choose between division under the PRA and taking under a will or an intestacy. Section 62 specifies what the time limit is. However, the time limits apply to proceedings for the division of relationship property. The time limit is calculated according to the size of the estate. For a small estate, the time limit is six months after the death of the deceased spouse. Under the PRA a small estate is defined in s 2 as being one that can be lawfully distributed without the need for administration of the estate to be obtained. For other estates, the time limit is no later than six months after the grant of administration. Extensions of time can also be made8.

[21]              No grant of administration has been made here. Until the size of the estate is known the need for such grant is unknown. However, the size of the estate cannot be known until the success or otherwise of Mrs Hau’s proceeding is known.

[22]              In the present case Mrs Hau contends that she is not seeking division of relationship property. That is a step that may come later. For the moment, she is seeking no more than orders under s 25(1)(a) of the Act. Such orders determine the respective shares of each spouse in the relationship property. As was recognised in Dahya v Dahya division is a separate matter from the classification of relationship property.9 Mrs Hau has taken this step because until she can establish that a part of the Mangere property is relationship property there would be no point in her seeking an order for division of relationship property as there is little else that would make obtaining such an order worthwhile.

8      See s 62(2) of the Property (Relationships) Act 1976.

9      At 166.

[23]              As at January 2015 the value of the Mangere property was $440,000.   If   Mrs Hau is successful in obtaining orders that effectively find that part of that property is relationship property she can then exercise Option A if she so wishes and pursue a claim under the PRA. Orders that part of the Mangere property is relationship property may have the effect of drawing that property back into Tevita Hau’s estate, in which case Mrs Hau may then chose to elect Option B and pursue a claim against the estate under the Administration Act. Given either scenario the classification of part of the Mangere property as relationship property will mean that it will not be a small estate in terms of s 62 of the PRA. Because Tevita Hau died intestate letters of administration under the Administration Act 1969 will be required. Not until administration of the estate is granted will time start to run under s 62. Accordingly, there is no time bar to what Mrs Hau presently seeks to achieve. I was not directed to any other provision that would place Mrs Hau’s proceeding out of time.

[24]              In any event if the proceeding were out of time this is the type of case where leave to bring the proceeding out of time would be likely to be granted.

[25]              It follows that I do not agree with the Family Court judge that the proceeding is essentially a proceeding for division of relationship property that is now time barred. The proceeding is more nuanced than that.

Does the LTA bar Mrs Hau bringing a claim under the PRA?

[26]              Secondly, I reject the Family Court Judge’s finding that the provisions of the LTA preclude the PRA from operating in the present circumstances. Section 4A of the PRA provides that every enactment must be read subject to the PRA, unless the other enactment expressly provides to the contrary. Unlike the Family Court Judge, I do not read the language of s 10(d) and s 61 of the LTA as expressly excluding the application of the PRA.

[27]              Furthermore, it is not clear to me that s 61 of the LTA is determinative when it comes to the question of a joint tenancy in this case. This is an aspect of Mrs Hau’s legal case which does not appear to have been fully considered. Counsel in the Family Court and in the appeal before me have seemingly approached the question of the joint tenancy on the basis that Tevita Hau and Osai Hau are registered as joint tenants on

the certificate of title for the Mangere property, which means they must be treated as joint tenants. The same approach was taken by the Family Court judge. However, registration as joint tenants is not the end of the matter.10

[28]              Section 61 of the LTA does no more than create a statutory fiction which deems registered owners to be joint tenants; the section does not prevent the Court from enquiring whether the equitable or beneficial title to the Mangere property is held as a tenancy in common:11

the legislature has not enacted …. that the persons “shall be entitled as joint tenants” but that they “shall be deemed to be entitled as joint tenants”.

[29]              This statutory fiction is rebuttable. There are three situations which have long been recognised as cases where equity will presume joint tenants at law hold the beneficial interest as tenants in common. One of those is where unequal contributions to the purchase price have been made, which (as is discussed later) may be the case here.12 In Delehunt v Carmody Gibbs CJ held:13

Where land was conveyed to two or more purchasers, all of whom had provided some of the purchase money, equity drew a distinction: if the purchase money had been provided in equal shares, the purchasers took beneficial interests as joint tenants, but if the money had been provided in unequal shares, they took as tenants in common.

[30]              In Malcolm v King the purchasers had contributed unequally.14 They were registered as joint tenants with the essential difference between tenancy in common and joint tenancy including the right of survivorship having been briefly described to them at the time of purchase in a letter from their solicitors. However, in the light of the parties’ evidence Henry J found:15

I am satisfied that the parties did not turn their minds to the real issue, that all they intended to achieve was a form of co-ownership, and they did not intend to take as joint tenants with all the legal consequences which flow from that.

10     See discussion in David Brown “Co-ownership” in Elizabeth Toomey (ed) New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at 6.5.04

11     Re Foley (Deceased) [1955] NZLR 702 (SC) at 704-705.

12     See Elizabeth Toomey (ed) New Zealand Land at 6.5.06.

13     Delehunt v Carmody (1986) 161 CLR 464 at 470-471.

14     Malcolm v King [1992] NZFLR 193 (HC).

15     Malcolm v King at 194.

[31]              Accordingly, the equitable presumption of a tenancy in common reflecting their respective contributions was held properly to reflect their ownership.

[32]              The equitable presumption of a tenancy in common can override a registered joint tenancy even after the death of the registered proprietors. In Cameron v Smith litigation concerning the nature of the tenancy arose after the two co-owners had died.16 There was no evidence as to the contributions each had made to the purchase price nor was there any information of the agreement between them. This led Sim J to find:17

In the absence of any direct evidence of an intention on their part to acquire and hold the land as joint tenants, the Court ought, I think, to find in favour of a tenancy in common, if there is any evidence to justify such a finding.

[33]              I have referred to this well-established equitable principle because the facts as set out in the Family Court judgment inform me that Tevita Hau initially owned the Mangere property with his first wife. He needed the help of Osai Hau to buy out the first wife’s share in the Mangere property. The logical inference to draw from this circumstance is that at the time Osai Hau purchased an interest in the Mangere property Tevita Hau already held a half share of that property, and that Osai Hau’s help was directed at allowing the two brothers to purchase the first wife’s share, which would then have led to the brothers acquiring full ownership of the property. Prima facie, this suggests that the respective contributions of Tevita and Osai Hau were unequal. More attention would need to be paid to the evidential foundation for this inference before it could support a Court order as to the existence of an equitable tenancy in common. But, if the inferences I draw from the information presently before me are correct they reveal a proper basis for Mrs Hau establishing that the Mangere property, although registered as a joint tenancy, was in fact by operation of equity held by Tevita and Osai Hau as tenants in common in unequal shares.

[34]              Whilst the equitable presumption of tenancy in common is rebuttable, the burden of doing so lies on the party claiming the beneficial interest was a joint tenancy.18 In the present case that would be Osai Hau.

16     Cameron v Smith (1910) 13 GLR 193 (SC).

17     Cameron v Smith at 194.

18     See Elizabeth Toomey (ed) New Zealand Land Law at 6.5.06.

[35]              Under s 2 of the PRA “owner” includes beneficial ownership. A claim for a declaration under s 25(3) of the PRA that Tevita Hau was a beneficial owner under a tenancy in common would readily leave Tevita Hau’s share in that tenancy in common open to a claim under the PRA as the case would then be on all fours with Dahya v Dahya. Given the willingness of the Court in Cameron v Smith to consider the character of the tenancy after the deaths of the co-owners, Tevita Hau’s death should be no bar to the Court considering the true character of the co-ownership of the Mangere property.

[36]              Further, the Privy Council in Malayan Credit Ltd v Jack Chia-MPH Ltd has held that the categories where equity will presume registered joint tenants hold the beneficial interest as tenants in common are not closed:19

There are other circumstances in which equity may infer that the beneficial interest is intended to be held by the grantees as tenants in common. In the opinion of their Lordships, one such case is where the grantees hold the premises for their several individual business purposes.

[37]              In the present case, the Mangere property was the family home of Mrs Hau and Tevita Hau as well as the home of Osai Hau. It can arguably be said that Tevita Hau held the tenancy in those premises for the several purpose of a family home with his spouse, whereas Osai Hau held the tenancy for the several purpose of residing at the property. Over the 22 years that Mrs Hau lived at the property with Tevita Hau, Osai Hau would have witnessed Tevita Hau and Mrs Hau using the property as their family home, so he could not help but know about this. Indeed, his apparent preparedness to allow this state of affairs to continue for so long may amount to him acquiescing to their use of the property as their family home. In which case equity may now preclude Osai Hau from adopting a different stance after Tevita Hau’s death. Accordingly, the pattern of use of the Mangere property may of itself support an equitable presumption that beneficial ownership of the Mangere property was held by the brothers as a tenancy in common. This is another aspect of the case that requires further enquiry.

[38]              I can see no reason why the equitable presumptions to which I have referred may not be applied either in the course of the exercise of a declaration under s 25(3)

19     Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549 (PC) at 560.

or to inform the making of an order assessing Mrs Hau’s share under s 25(1)(a) of the PRA. In this regard, the Court would be doing no more than using those presumptions for guidance to enable it to state the extent of the beneficial interests held by Tevita and Osai Hau in the Mangere property. This is well within the inventory-taking function that s 25(1)(a) and s 25(3) vests in the Court.20

Does the PRA preclude Mrs Hau from making a claim against Osai Hau?

[39]              Osai Hau contends that no proceedings under the PRA can be brought against him. He contends that proceedings under the Act must necessarily involve spouses and partners only. I reject that view.

[40]              If the couple had separated while Tevita Hau were still alive, then in any application Mrs Hau made under s 25(1) and under s 33(3)(e) for an order for partition or vesting of part of the Mangere property in her, Osai Hau would have been joined as a respondent, because his interest in the property would have been potentially at risk of being adversely affected. A failure to include him as a respondent in any such application would have made it difficult to enforce orders against him.21

[41]              Whilst the PRA stipulates who can bring a proceeding it does not define those against whom a proceeding may be brought. Section 33(3)(e) of the PRA (and a number of other provisions) are wide enough to allow for orders to be obtained against third parties.22 Furthermore, s 37 of the PRA expressly provides for third parties to appear and be heard on applications under the PRA.

[42]              The open-ended allowance for who may appear and be heard in proceedings under the PRA coupled with the ability under the PRA to obtain orders against third parties informs me that Parliament contemplated proceedings being brought against

20 Division of relationship property includes inventory-taking, valuation, ascertaining relationship property debts, applying the division provisions under Part 4 of the Property (Relationships) Act and making orders under Part 7: see discussion in Yeoman v Public Trustee Ltd [2011] NZFLR at [33].

21 See s 37: whilst the section only requires notice, in cases such as this where the character of the third party’s interest in the subject property is at risk of being altered he would typically be joined as a party.

22     See discussion in Johanson v Johanson (1993) 10 FRNZ 578 (CA) at 581.

third parties who at the material times have or had a joint interest in property owned by one or both spouses.

[43]              In Johanson v Johanson funds from the sale of relationship property were expended on property owned by a third party and one of the spouses then sought unsuccessfully to make a claim under the Matrimonial Property Act 1976 (as the PRA was then known) for a share of that property. The Court of Appeal found this legislation did not extend to cases where the land in question was always owned by the third party and the spouse was making a claim against the third party. Instead the remedy was for the spouse to make a claim based upon constructive trust or other equitable interest in the subject land on the basis funds from relationship property were applied to enrich the value of that land.

[44]              Johanson v Johanson is not a barrier to what Mrs Hau attempts here. The present case is distinguishable from Johanson v Johanson because here the rights for which Mrs Hau seeks recognition under the PRA accrued at a time when her deceased spouse was a co-owner of the Mangere property.

[45]              Accordingly, the fact Osai Hau was never in a relationship with Mrs Hau is no barrier of itself to Mrs Hau bringing proceedings under the Act against him.

Conclusion

[46]              There is no doubt that Mrs Hau and Tevita Hau used the Mangere property as their principal (if not only) residence for the 22 years of their marriage. Accordingly, it meets the definition of family home in s 8 of the PRA. The perceived stumbling blocks are the registered joint tenancy coupled with the operation of survivorship. The purpose of the proceeding is to achieve a determination that despite those stumbling blocks part of the Mangere property is relationship property in which Mrs Hau has a share. I have identified how that may be done.

[47]              Once a determination under either s 25(1)(a) or s 25(3) of the PRA is made the Court can then turn its attention to the separate question of division of the relationship property. There is no question that the PRA provides the necessary mechanics to achieve allocating Mrs Hau a share of the Mangere property. If the Court finds she is

entitled to a share of the Mangere property as relationship property it can then make orders dividing that property (s 25(1)(b)) and vesting a share of the property (s 33(3)(e)) in Mrs Hau. Before such division occurs Mrs Hau will need to elect Option A under the PRA.

[48]              An order that Mrs Hau was entitled to a share of the Mangere property as relationship property may involve a declaration that the brothers’ beneficial co- ownership of the Mangere property was held as a tenancy in common.23 This could allow a share of that property to be brought back into Tevita Hau’s estate and open it to a claim by Mrs Hau under the Family Protection Act 1955.   Alternatively, if    Mrs Hau exercises Option B she can then make a claim under the Administration Act against Tevita Hau’s estate.

[49]              The question raised in this proceeding is one that is well suited for determination under the PRA. Given the absence of an express barrier to the question being determined under this Act and given its provisions can be purposively applied to the present case, I see no reason to find there is no jurisdiction to make such determination. In this regard, I note the comments of Cooke P in Dahya v Dahya:24

Co-ownership is a common and traditional form of ownership. A situation where one or both spouses share co-ownership with, for example, a parent of one of them or other members of the family of one of them must be quite common. No reason suggests itself why Parliament should have meant that for the purposes of the Act there is to be deemed to be no matrimonial home whose value is available for division in any such case … On the contrary one of the main features of the scheme of the Act appears to be that, if the spouses or one of them have some form of ownership of the matrimonial home, the value thereof is to be shared equally (subject to the extraordinary circumstances exception). The [PRA] is an important piece of social legislation. With great respect to those who have taken a contrary view, I can find nothing in its language compelling the Court to depart from the policy of the Act in co-ownership cases like the present. (emphasis added).

[50]              On my reading of the PRA there is nothing that expressly excludes the present proceeding in which Mrs Hau claims a PRA interest in a joint tenancy being brought by her against Osai Hau. The proceeding appears to be novel, but that is no reason to

23 Although for the reasons expressed herein, I consider the jurisdiction finding is applicable to joint tenancies as well. The idea of approaching the case as involving a beneficial tenancy in common offers a separate approach that would bring the case within the already established principle of Dahya v Dahya.

24     See Dahya v Dahya at 155.

be circumspect about the jurisdiction to bring it. Nor is there any proper basis in terms of the Act’s scheme and purpose for finding that Parliament intended the reach of the PRA to stop at tenancies in common and therefore not extend to joint tenancies, which are just as common a form of co-ownership as are tenancies in common. In this regard, I note that s 83 of the PRA provides in the case of jointly owned property of spouses that where one spouse dies such property does not automatically pass by survivorship to the surviving spouse. Instead its status as relationship property is to be determined according to the status it had before the deceased spouse died. Accordingly, Parliament intended that in those circumstances the PRA’s provisions would not automatically yield to survivorship. The omission to make similar express provision in cases where a deceased spouse owns the family home jointly with a third party may have simply been an oversight when Parliament extended the PRA’s scope to apply to the division of property following one spouse’s death. Given the strong social purposes and values of this legislation, which focus on securing the just division of relationship property between spouses when their marriage ends through separation or death, it is difficult to envisage that Parliament would intend that the legislation’s effect could be automatically excluded by the operation of survivorship.25 This is particularly so in the case of an asset like the family home, which has a special status under the PRA.26 Here, unless the PRA is read purposively and in a way that recognises jurisdiction for Mrs Hau to make a claim, the contribution she made to the marriage while living in the family home for 22 years will count for nothing.

[51]              Furthermore, it is difficult to identify any other available jurisdiction that can achieve the PRA’s principle of resolving questions about relationship property as inexpensively, simply and speedily as possible as well as its other important principles and purposes.27

[52]              Accordingly, I am satisfied the Family Court has jurisdiction to hear the proceeding under the Act. This will first require the Family Court to determine if it should exercise its jurisdiction under either s 25(1)(a) or s 25(3) and either order or

25     See s 1M (purpose of the Act) and s 1N (principles of the Act).

26     See s 8(1)(a).

27     See ss 1M and 1N.

declare that in the Mangere property is in part relationship property in which Mrs Hau has a share.

[53]              However, I make the following observations. Section 38A of the PRA permits a Family Court Judge to order the transfer of the proceedings to the High Court if the Judge is satisfied that the High Court is the more appropriate venue for dealing with the proceedings. The present case is complex. It requires the application of provisions of the PRA in circumstances where they seemingly have not been applied before. Mrs Hau has currently filed proceedings in this Court based on alternative causes of action against Osai Hau. Given that she has also taken this step, it may be more efficient if all proceedings that traverse the substance of her attempt to claim an interest in the Mangere property are heard by the one Court at the one time. Her counsel was agreeable to this approach at the hearing before me.

[54]              The alternative approaches which invoke when equity will presume a tenancy in common were not traversed by the parties at the hearing. It may be that on further consideration this is a topic that is more suited to a claim brought in this Court’s equitable jurisdiction. If the proceedings were transferred to this Court that would also enable Mrs Hau to bring an alternative claim in this Court’s equitable jurisdiction for a declaration that the beneficial ownership of the Mangere property was held as a tenancy in common which would then bring Tevita Hau’s share of the property back into his estate. Thus, opening the way for Mrs Hau to make a claim against the estate under Option A of the PRA or elect Option B and proceed against Tevita Hau’s estate under the Administration Act and/or the Family Protection Act.28 Given that she has those potential interests, her standing to bring such claims in this Court’s equitable jurisdiction is likely to be recognised.

[55]              The complexity of the present proceeding and the potential litigation that may be brought in order to achieve Mrs Hau’s aim suggests that it may be better if all relevant legal issues were before one Court for determination. There is a danger that if matters proceed partly in this Court and partly in the Family Court something that requires to be addressed may fall between the two jurisdictions.

28     The Family Court does not have an equitable jurisdiction and therefore could not hear this type of alternative claim: see Yeoman v Public Trust Ltd [2011] NZFLR 753 (HC) at [27].

Result

[56]The appeal is allowed.

[57]              Leave is reserved to the parties to file memoranda on costs should they be unable to agree on that outcome.