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Kwok v Rainey

Kwok v Rainey

Case [2020] NZHC 923 6 May 2020

De Facto Relationship

Presumption of Equal Sharing

Disposition to Defeat

Validity of Trust

Family Law

Property Law

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NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2018-406-19

[2020] NZHC 923

BETWEEN
WAN LAN KWOK

Plaintiff

AND

DAVID ERNEST RAINEY

First Defendant

DAVID ERNEST RAINEY AS TRUSTEE OF THE DAVID RAINEY FAMILY TRUST

Second Defendant

GASCOIGNE WICKS LAWYERS

Third Party

Hearing: 9-12 March 2020

Counsel:

J R Hosking for Plaintiff

D M Fraundorfer and R A Rosser for Defendants F B Barton and S McLean for Third Party

Judgment:

6 May 2020

JUDGMENT OF THOMAS J

KWOK v RAINEY [2020] NZHC 923 [6 May 2020]

Table of contents

Introduction [1]

The claim [4]

Grounds for the claim [5]

Defendants’ claim against the third party [9]

Structure of decision [11]

The evidence [15]

Early stages of the relationship [15]

The Trust [37]

Establishment of the Trust [49]

The house at Oteki Park [55]

The relationship [63]

Financial arrangements [68]

Current situation [72]

PART 1 [81]

When did Ms Kwok and Mr Rainey’s de facto relationship commence? [81]

Discussion [86]

(i) Duration of the relationship [87]

(ii)Nature and extent of a common residence  [88]
(iii)Whether or not a sexual relationship exists  [89]
(iv)Degree of financial dependence or interdependence  [90]
(v)Ownership, use and acquisition of property  [91]
(vi)Degree of mutual commitment to a shared life  [92]
(vii)Care and support of children  [93]
(viii)Performance of household duties  [94]
(ix)Reputation and public aspects of the relationship  [95]
(x)Other factors  [96]

Section 44 Disposition to defeat [98]

Is the Trust valid? [123]

Preliminary point [124]

The Trust [128]

What constitutes a trust? [131]

The three certainties [134]
Other provisions of the Trust [142]

Validity of the Trust [146]

Conclusion [157]

Powers as property [159]

Constructive trust [167]

Other relationship property [172]

The Company [173]
Exception to equal sharing [176]

Analysis [179]

Family chattels [181]

Further claims [182]

Occupation rent [183]

Maintenance [189]

PART 2 [196]

The claim for negligence and breach of contract [197]

The evidence [203]

Causation [209]

Damages [226]

The law [226]

Liability to Ms Kwok [231]

Mitigation [237]

Occupation rent [243]

Costs as damages [244]

Preliminary issue: claim not pleaded [246] Discussion [250]

The law [255]

Causation [258]

Foreseeability [259]

Mitigation [261]

Reasonableness [263]

Conclusion [264]

General damages — distress and inconvenience [265]

Result [266]

Introduction

[1] Wan Lan Kwok, a Hong Kong resident, met David Rainey, a builder from Tauranga, when she was in New Zealand as a tourist in August 2008. They quickly developed a relationship and, by 1 March 2009, Ms Kwok was living and working with Mr Rainey in New Zealand. When granted a resident’s visa on the basis of her partnership with Mr Rainey in August 2011, she relocated to New Zealand, in her mind permanently, to…

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 Kwok v Rainey

Details

AGLC: Kwok v Rainey [2020] NZHC 923
Case: [2020] NZHC 923
Decision Date: 6 May 2020

CaseChat Overview and Summary

In Kwok v Rainey, Wan Lan Kwok, a Hong Kong resident, sought to establish a de facto relationship with David Rainey, a builder from Tauranga, in order to claim a share of his property. The case involved complex issues regarding the validity of a trust established by Rainey to protect his assets, and the legal advice provided by Gascoigne Wicks Lawyers (GW) to Rainey. The court had to determine whether Kwok was entitled to a half share of the property at Oteki Park, whether the trust was valid, and if GW was liable for Kwok's claim against Rainey. The court found that Kwok and Rainey were in a de facto relationship from 1 March 2009 and that the trust was not a valid defence to Kwok's claim. The court held that the trust was established with the intention to defeat Kwok's rights, and therefore, the property should be shared equally between the parties. The court also found that GW was negligent in providing legal advice to Rainey, and as a result, was liable for the costs incurred by Rainey and the Trust in defending Kwok's claim. The final orders included Kwok receiving a half interest in the family home, maintenance payments, and a share of the family chattels, while Rainey and the Trust were ordered to pay Kwok's legal costs and damages. GW was also ordered to pay Kwok's half interest in the family home and the costs incurred by Rainey and the Trust in defending Kwok's claim.

Orders