Llamas v Massaar - [2018] NZHC 357

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-165 [2018] NZHC 357

BETWEEN
NOEL MOLINA LLAMAS

Applicant

AND

AILENE SISTONA MASSAAR Respondent

Hearing: 14 November 2017

Appearances:

S van Bohemen for Applicant
R Peters for Respondent

Judgment:

8 March 2018

JUDGMENT OF MANDER J

[1] The appellant, Mr Noel Llamas, appeals the determination of Judge Brandts- Giesen that he was not, for the purposes of the Property (Relationships) Act 1976 (the Act), in a qualifying de facto relationship with the respondent, Ms Ailene Massaar.

Background

[2] Mr Llamas met Ms Massaar in 2008. At that time, Ms Massaar was in a de facto relationship with a Ms Rachelle Pagtalunan. Ms Pagtalunan was the captain of
an Antarctic research vessel which would spend long periods of time at sea.

LLAMAS v MASSAAR [2018] NZHC 357 [8 March 2018]

Ms Pagtalunan would return from these trips when she was on extended leave, on a

“three month on, three month off” basis, and live with Ms Massaar.

[3] Ms Massaar and Ms Pagtalunan’s relationship commenced in May 2003. The following year they purchased a property at Tilford Street (the Tilford Street property) where the couple lived together, and an investment property at St Johns Street (the St Johns Street property).

[4] Mr Llamas had come to Christchurch from the Phillipines, where his wife and family remained. They would join him in New Zealand in December 2009, although a separation followed almost immediately on their arrival, and Mr Llamas’ marriage was dissolved in May 2010.

[5] At the time Mr Llamas met Ms Massaar he had accommodation at Ms Massaar’s mother’s address. Mr Llamas’ case was that he entered into a sexual relationship with Ms Massaar shortly after meeting her, and that by the end of 2008 he had moved into the Tilford Street property with her, where he says they lived together as a couple in a de facto relationship. When Ms Pagtalunan returned home from sea, Mr Llamas would leave the property to live in rental accommodation which he maintained at Hereford Street. Upon Ms Pagtalunan resuming her duties, he would return to live with Ms Massaar at Tilford Street, sharing a bedroom with her.

[6] In support of his case that he was living in a de facto relationship with

Ms Massaar, Mr Llamas relied upon family and social functions they attended as a couple, and that they holidayed together. He pointed to support he provided to
Ms Massaar who was studying to become a nurse, his carrying out of domestic chores, and his payment of food, petrol, repairs and maintenance expenses. Mr Llamas relied upon evidence of the parties’ mutual love and affection, the financial support he provided to Ms Massaar, the opening of a…

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 Llamas v Massaar

Details

AGLC: Llamas v Massaar [2018] NZHC 357
Case: [2018] NZHC 357
Decision Date: 8 March 2018

CaseChat Overview and Summary

The applicant, Noel Molina Llamas, appealed the Family Court’s decision that he and the respondent, Ailene Stoina Massaar, were not in a de facto relationship. The Court was required to determine whether the Family Court erred in finding that Mr Llamas and Ms Massaar were not in a de facto relationship. The appeal hinged on whether the Family Court had failed to properly address the statutory criteria of s 2D of the Property (Relationships) Act 1976, disregarded relevant evidence, made findings without a proper evidential basis, failed to take into account relevant facts, or misconstrued evidence. The Court found the Family Court did not make any material errors. The Family Court had taken into account all the relevant factors and assessed the credibility of the witnesses. There was no evidence of a mutual commitment by Ms Massaar to a shared life with Mr Llamas. The appeal was dismissed, and Ms Massaar was entitled to scale costs on a 2B basis.

Orders