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…
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