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…

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 Hau v Hau

Details

AGLC: Hau v Hau [2018] NZHC 881
Case: [2018] NZHC 881
Decision Date: 1 May 2018

CaseChat Overview and Summary

The widow of Tevita Hau, Mele Faalino Hau, appealed a Family Court finding that it had 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. The appeal is by way of re-hearing and so subject to principles to be derived from Austin, Nichols & Co Inc v Stichting Lodestar. The appeal was allowed. The Court held that the Family Court had 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 declare that in the Mangere property is in part relationship property in which Mrs Hau has a share.

Orders