Kake v Napier - [2022] NZHC 2395

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-872

[2022] NZHC 2395

UNDER Part 9 of the District Courts Act 2016

IN THE MATTER OF

an appeal against a decision of the District Court at Manukau

BETWEEN

JANE SARAH KAKE

Appellant

AND

ROSS WAYNE NAPIER

Respondent

Hearing: 31 August 2022

Appearances:

J T Burley and K L Chiu for the appellant C J Pendleton for the respondent

Judgment:

19 September 2022

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 19 September 2022 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

KAKE v NAPIER [2022] NZHC 2395 [19 September 2022]

Introduction

[1] Jane Kake sued Ross Napier in the District Court. She alleged Mr Napier had breached an oral contract for building work he carried out on Ms Kake’s property. Mr Napier filed an appearance objecting to the jurisdiction of the District Court to hear and determine the proceeding. He said the proceeding had to be determined in the Family Court. Ms Kake then applied to set aside Mr Napier’s appearance.

[2] On 11 May 2022, Judge J H Lovell-Smith found that Ms Kake’s claim fell for determination under the Property (Relationships) Act 1976 (the PRA) and so the Family Court had exclusive jurisdiction over it. Her Honour dismissed the claim in the District Court for want of jurisdiction.1

[3]Ms Kake appeals.

Background

[4] Ms Kake and Mr Napier met in 2008. In February 2009, Mr Napier proposed marriage to Ms Kake. She accepted. However, the proposal was made public only in 2011 or 2012.

[5] Ms Kake owned a property in Māngere Bridge. She had purchased it in 2005. From 2012–2015, Mr Napier carried out building work on the property.

[6] Ms Kake and Mr Napier married in December 2016. They separated in October 2017.

[7] In July 2021, Ms Kake claimed against Mr Napier in the District Court. She claimed there was an oral contract between them governing the building work on the property. She said Mr Napier had breached that contract by overcharging her.

[8] As part of the background to the claim, Ms Kake said that from around 4 May 2010 until 5 December 2011, she loaned various sums of money totalling $9,317.11 to Mr Napier. In lieu of repayment, the parties agreed that Mr Napier would carry out

1 Kake v Napier [2022] NZDC 8408.

building work on the Māngere Bridge property. The cost of his labour would be set off against the loans already made and loans that would continue to be advanced to Mr Napier.

[9] Mr Napier objected to the District Court’s jurisdiction to hear and determine the claim. He said that the arrangement with Ms Kake was properly characterised as contributions made as part of a de facto relationship, which had begun when they became engaged in 2009. He said the dispute therefore had to be addressed pursuant to the provisions…

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 Kake v Napier

Details

AGLC: Kake v Napier [2022] NZHC 2395
Case: [2022] NZHC 2395
Decision Date: 19 September 2022

CaseChat Overview and Summary

Jane Kake appealed a decision of the District Court, which had dismissed her claim for want of jurisdiction. The District Court had found that the Family Court had exclusive jurisdiction over the claim, which was an allegation that Ross Napier had breached an oral contract for building work he had carried out on Ms Kake's property. Ms Kake argued that her claim was not governed by the Property (Relationships) Act 1976 and so the Family Court did not have exclusive jurisdiction. The court was required to determine whether the Family Court had exclusive jurisdiction over Ms Kake’s claim. The court found that the Family Court has exclusive jurisdiction only over applications made under the Property (Relationships) Act 1976. Ms Kake’s claim for breach of contract was not an application under the Act and so the Family Court did not have exclusive jurisdiction over it. The court allowed Ms Kake’s appeal, set aside the Judge’s dismissal of her claim and ordered that Ms Kake was entitled to costs on the appeal.

Orders