Leota v Leota - [2019] NZHC 3335

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 AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-999

[2019] NZHC 3335

UNDER the Property Relationships Act 1976 s 39 and District Courts Act 2016 ss 124-130

IN THE MATTER

of a decision of Judge Goodwin in the District Court dated 30 April 2019

BETWEEN

DENISE ANNE LEOTA

Appellant

AND

MALOAUFA’ATASI AIVI LEOTA

also known as TALITAMA AIVI LEOTA Respondent

Hearing: 3 December 2019

Appearances:

D Hayes for the Appellant S Bailey for the Respondent

Judgment:

16 December 2019

JUDGMENT OF MUIR J

This judgment was delivered by me on Monday 16 December 2019 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Solicitors:
Hunwick Law Limited, Hamilton

Counsel:
D Hayes, Barrister, Hamilton S Bailey, Barrister, Manukau

LEOTA v LEOTA [2019] NZHC 3335 [16 December 2019]

Introduction

[1] Mrs Leota appeals from a judgment of the Family Court relating to the classification and division of relationship property.1

[2] She was married to the respondent for almost 40 years before the parties separated on 17 January 2014.

[3] The bulk of the relationship property pool comprises two houses, one in Papakura and the other in Invercargill. The former was the family home and continued to be occupied by Mrs Leota after separation, although from time to time she stayed in Invercargill where she retained a room. Rental was periodically received from tenants and/or boarders in both houses.

[4] Attribution of this rental and assessment of holding costs in respect of the properties were among the issues in dispute before the Family Court. There were also other disputes in relation to Mr Leota’s Kiwi Saver proceeds, a motor car purchased by him and responsibility for various insurance premiums. In addition, Mrs Leota claimed there were extraordinary circumstances justifying an exception to the equal sharing regime provided for in the Property (Relationships) Act 1976 (the Act)2 and/or that Mr Leota had dissipated relationship property.

Basis on which appeal proceeds

[5] Rights of appeal to the High Court from the Family Court are governed by s 39 of the Act. It imports s 27 of the District Court Act 2016, which provides that appeals are to be by way of rehearing.

[6]In B v F Heath J discussed the implications as follows:3

[6] Relationship property appeals from the Family Court are governed by s 39 of the Act, which imports ss 74–78 of the District Courts Act 1947 as part of the procedures on appeal. The appeal is by way of rehearing (s 75) and falls within the scope of an appeal of the type to which the Chief Justice referred in Austin, Nichols, at para [17]. If the appeal were allowed, this Court may

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 Leota v Leota

Details

AGLC: Leota v Leota [2019] NZHC 3335
Case: [2019] NZHC 3335
Decision Date: 16 December 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Denise Anne Leota appeals against a Family Court decision regarding the classification and division of relationship property. The marriage lasted for almost 40 years before the parties separated in 2014. The property pool in question comprises two houses, one in Papakura and the other in Invercargill. The appeal focuses on five issues, including the adjustment for Mr Leota’s Kiwi Saver account, the costs incurred in obtaining rental and board payments, the amount Mrs Leota paid in interest on the mortgage over the Papakura home, the premium payments made by Mrs Leota post-separation in respect of the OnePath life insurance policy, and the failure to take into account that Mrs Leota was a victim of domestic violence. Additionally, Mrs Leota raises a preliminary jurisdictional point relating to Mr Leota’s identity.

Regarding the jurisdictional point, the court dismisses the challenge based on procedural grounds and substantive arguments that the alleged false identity does not impact the proper division of relationship property. Concerning the Kiwi Saver account, the court dismisses this ground of appeal due to insufficient evidence that Mr Leota cashed in the account before separation. For the costs incurred in receipt of rental/board and issues arising as a result, the court allows an informal cross-appeal and adjusts the rental receipts, resulting in a net adjustment in Mr Leota’s favour of $3,606.50. The court allows the ground of appeal relating to the failure to adjust for mortgage interest on the Papakura property and specifies Mr Leota’s contribution to such payments as $10,610.00, deducting $3,606.50 for the rental receipts adjustment, resulting in a net adjustment of $7,003.50. The court dismisses the ground of appeal concerning the OnePath life insurance premium payments, as Mrs Leota fails to satisfy the grounds in May v May. Lastly, the court dismisses the ground of appeal regarding the failure to identify domestic violence as a basis for unequal sharing, as there is no proper evidential basis for an exception to the equal sharing regime.

In summary, the court dismisses four grounds of appeal and allows one ground of appeal, adjusting the distribution of relationship property accordingly. The court also extends the time for Mrs Leota to decide on the ownership of the properties and reserves the right to apply for any supplementary orders necessary. The costs of the appeal lie where they fall, with Mr Leota being legally aided in respect of the proceedings.

Orders