Maxwell (aka Rutene) v Craig
[2017] NZHC 1151
•19 June 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-417 [2017] NZHC 1151
UNDER the Property (Relationships) Act 1976,
section 42 and Land Transfer Act 1952, section 145A
IN THE MATTER OF
an application that notice of claim not lapse
BETWEEN
SHARLENE ANNE MAXWELL
(ALSO KNOWN AS SHARLENE ANNE RUTENE)
Applicant
AND
PAUL ANTHONY CRAIG Respondent
Hearing: 19 June 2017 Appearances:
S A Maxwell, applicant in person
P A Craig, respondent in personJudgment:
19 June 2017
ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL
Copy for:
S A Maxwell, Papakura, Auckland. P A Craig, Whangarei.
MAXWELL v CRAIG [2017] NZHC 1151 [19 June 2017]
[1] Ms Sharlene Maxwell applies under s 145A of the Land Transfer Act
1952 for an order that a notice of claim under s 42 of the Property (Relationships) Act 1976 not lapse. The notice of claim is NC5609760.1. She lodged it on
28 May 2003. The notice is lodged against the title to the property at 110 Cargill Street, Papakura. Mr Craig is the registered proprietor. In her notice of claim, Ms Maxwell said that she had been in a de facto relationship with Mr Craig for approximately 17 years. She claims an interest in the property by virtue of the de facto relationship. There has been an interim order sustaining the notice of claim pending further order of the court. I am required to decide whether the notice of claim should stay on the title.
[2] For this proceeding Ms Maxwell has not had a lawyer at any stage. Mr Craig has not been represented at this hearing but it is apparent that at an earlier stage of the proceeding he had assistance of a lawyer. His written submissions filed in opposition to the application show that a lawyer has had an input.
[3] A question arose at the start of the hearing about Mr Craig’s submissions. He had emailed them to the court and to Ms Maxwell. She complained that that was a disadvantage to her because she did not have the means to print them out. She claimed that printing would be too expensive. In answer to my question, she acknowledged that she had had the opportunity to read his submissions, and she had read the first four pages. Those were the key parts for her to read. I dealt with that by providing her with an additional copy of Mr Craig’s submissions. She was able to address me in reply after Mr Craig presented his submissions.
[4] Under s 42 of the Property (Relationships) Act 1976 a claim to an interest under that Act may be lodged against the title to land registered under the Land Transfer Act. The person lodging the claim does not have to have an actual interest in the land when they lodge the caveat. They merely need to show that they have a claim to an interest through the Property (Relationships) Act. If property is relationship property, a party to that relationship may lodge a notice of claim under s 42 even if they do not have a legal or beneficial interest in the
property. They are instead saying that they have a claim to obtain such an interest, either by way of agreement or by court order.
[5] In deciding whether Ms Maxwell has a claim under the Property (Relationships) Act and whether the notice of claim should stay on the title, I follow what I call the caveat analogy approach. Some cases on notices of claim adopt the approach of enquiring whether a notice of claim is reasonably required. Here I am referring to Rusden v Rusden:1
In my view the basic question for determination by the court in considering applications for removal of notices of claim must be whether or not the continuance of registration of the notice in question is reasonably required to protect rights of the claimant under the Matrimonial Property Act 1976.
[6] The approach of deciding a case by analogy to caveat cases is shown in decisions such as Hayball v Lewis2 and also SM v ASB Bank Ltd, where the Court of Appeal stated:3
The principles applying to applications for removal of caveats under s
143 of the Land Transfer Act are well-established. The onus is on the caveator to show that he or she has a reasonably arguable case for the
interest claimed. Even if a reasonably arguable case to sustain the
relevant interest is established, the court may nevertheless make an order for removal where it is satisfied that the caveator can have no reasonable expectation of obtaining a benefit from the continuance of the caveat or if the caveator’s interest can be reasonably accommodated in some other way.
[7] Ms Maxwell and Mr Craig never married and were never in a civil union. The Matrimonial Property Act 1976 originally only dealt with division of property between married couples. It did not apply to de facto relationships. Where couples who lived in a de facto relationship split up, the rules for division of property were based on common law and equity. Up until 1 February 2002, it was not possible for couples who had been in a de facto relationship to lodge notices of claim under s 42. That changed on 1 February 2002, with amendments
under the Property (Relationships) Amendment Act 2001. The Matrimonial
1 Rusden v Rusden (1980) 3 MPC 157 (HC) at 159.
2 Hayball v Lewis [1996] 1 NZLR 717 (HC).
3 SM v ASB Bank Ltd [2012] NZCA 103, [2012] NZFLR 641 at [35].
Property Act was re-named the Property (Relationships) Act. It extended the rules for division of property to civil unions and to de facto relationships, and to the division of property between spouses and partners after death. With that, it became possible for a notice of claim to be lodged by a de facto partner. It was necessary, however, that the de facto relationship continued after 1 February
2002. That means that for Ms Maxwell to lodge a notice of claim, she needs to show an arguable case for a claim under the Property (Relationships) Act to the property at 110 Cargill Street, Papakura, on the basis that a de facto relationship lasted after 1 February 2002. She also needs to show an arguable case that the property at Cargill Street was relationship property.
[8] There is no doubt that Ms Maxwell and Mr Craig were in a de facto relationship. I have heard different accounts of their relationship. In the way of many such cases, while the couple were obviously in love in the early years of the relationship, bitterness later developed and resulted in a separation. Much of their history is contested, and those differences became apparent during the hearing.
[9] I refer to Mr Craig’s affidavit. He says that he and Ms Maxwell met when they were at school in their teenage years. Ms Maxwell has four children. Mr Craig is not the father of the first child but he is the father of the other children. Ms Maxwell says that Mr Craig treated her first son in just the same way as he would treat his own son. The first child was born in 1986, the next one in 1989, another in 1992 and the fourth one was born in 1995. When the first child was born, Ms Maxwell lived in a rented home in Hamilton. Mr Craig says that he was in the Army living in the barracks at Papakura. He says that in 1989 he gave her funds to help with the deposit to buy a property in Hamilton, and she was the sole registered proprietor of the property. He says that she moved to Papakura and they began living together in an Army rental home while she rented out her Hamilton property.
[10] In 1992 there was a domestic incident when the Police were called. He left the Army house and was posted to Tauranga where he spent the next year. Ms Maxwell continued to live in the Army house in Papakura. He says that
while he was in Tauranga he continued to support the family financially. He was discharged from the Army at the end of 1993 when he moved back from Tauranga. The couple lived in the Army rental house until 1994. In early 1995 he bought the property at Cargill Street. That was with assistance from his parents. He says that they moved into Cargill Street in April of 1995. It appears that for that period the Cargill Street property was used as the family home. Mr Craig says that it did not work out and Ms Maxwell moved out with the children later in the year. He describes her as having a transient and unsettled lifestyle. He says that at times between 1995 and 1997 he allowed her to stay at the Cargill Street property. This was with a view to the children’s welfare. He became unemployed in 1997. He received an unemployment benefit for a single person. He contends that he and Ms Maxwell were not in a committed de facto relationship. He gives details of his movements August 1999 to 2006, showing that he had changes of accommodation as well. He says that from 1999 to 2003
Ms Maxwell lived at various other addresses and did not live with him. On his account, the de facto relationship finished no later than 1999. He says that they did keep in contact because of the children and that on occasion two of the children lived with his mother while the youngest daughter stayed with Ms Maxwell.
[11] Ms Maxwell says that the Hamilton property was sold by mortgagee’s sale. She confirms that they were living together as a couple when Mr Craig bought the Cargill Street property. She also confirms that she and the children later moved out and that they had accommodation in other places. She maintains, however, that the relationship continued until the end of 2002 when she found out that Mr Craig had entered into a new relationship with another woman. In submission, she referred to an incident in 2003 which led to her applying for a protection order and also lodging the notice of claim. She contends that while they may have been apart at times she and Mr Craig were in a de facto relationship until it terminated in 2002.
[12] Under s 2D(4) of the Property (Relationships) Act, a de facto relationship ends when the partners cease to live together as a couple. The question here is whether Mr Craig and Ms Maxwell ceased to live together as a couple before
1 February 2002. Section 2D(2)of the Property (Relationships) Act sets out the considerations for determining whether two people lived together as a couple.
2D Meaning of de facto relationship
(1) For the purposes of this Act, a de facto relationship is a relationship between 2 persons (whether a man and a woman, or a man and a man, or a woman and a woman)—
(a) who are both aged 18 years or older; and
(b) who live together as a couple; and
(c) who are not married to, or in a civil union with, one another.
(2) In determining whether 2 persons live together as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship:
(b) the nature and extent of common residence: (c) whether or not a sexual relationship exists:
(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
(e) the ownership, use, and acquisition of property:
(f) the degree of mutual commitment to a shared life: (g) the care and support of children:
(h) the performance of household duties:
(i) the reputation and public aspects of the relationship. (3) In determining whether 2 persons live together as a couple,—
(a) no finding in respect of any of the matters stated in subsection (2), or in respect of any combination of them, is to be regarded as necessary; and
(b) a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
[13] Given the general tenor of the evidence by both Mr Craig and Ms Maxwell, my general impression is that from the late 1990s onwards many of the factors in s 2D(2) were missing or were relatively weak. In part, their contact may be consistent with the way that separated parents deal with each other when they need to deal with questions affecting their children. My view is that Ms Maxwell’s claim to there being a de facto relationship after 1 February 2002 is weak, but I cannot rule it out of hand completely. It is arguable for her that there was a de facto relationship of some sort. A final view can only be formed if there were to be a full hearing in court about it.
[14] I accept also that if there is a finding of a de facto relationship after 1
February 2002, then Cargill Street is arguably relationship property. While it may not have been used as a family home at the time of separation, it appears to have been acquired during the relationship and will count as relationship property under s 8(1)(e) of the Property (Relationships) Act.
[15] There is, however, another matter that counts against Ms Maxwell. She has not taken any proceedings under the Property (Relationships) Act to obtain any orders in respect of the Cargill Street property. There are time limits for bringing proceedings under that Act. In the case of a de facto relationship it is three years after the de facto relationship ends.4
[16] For the hearing, Mr Craig provided copies of some court decisions. One of those decisions referred to a judgment of Gault J in Laing v Laing:5
Section 24 of the Matrimonial Property Act requires that an application made after the marriage has been dissolved, must be made before the expiration of the period of 12 months from the date of dissolution…. [A]fter the expiry of the 12 month period, until an application for extension of time has been made and granted, there is no basis upon which an interest in property under the Matrimonial Property Act can be claimed.
The thrust of what Gault J said is that once the time limit of any proceedings under the legislation has expired, there is no basis for lodging a notice of claim under the
4 Property (Relationships) Act 1976, s 24(1)(c).
5 Laing v Laing (1988) 4 NZFLR 629 at 632.
Property (Relationships) Act. That case was decided under the Act as it was before
2002, but what was said there also applies today.
[17] The Property (Relationships) Act does provide that the Family Court can extend the time for making an application, but Ms Maxwell acknowledges that she has not made any such application. On Ms Maxwell’s case, the time for making a claim expired at the end of 2005, so it is now nearly 12 years since the expiry of the limitation period. When applications are made for extensions of time, the court typically takes into account the length of the delay, the adequacy of any explanation for the delay, the substantive merits and any prejudice to the other side. In this case the delay is very substantial. Ms Maxwell has not provided any adequate explanation for her failure to take proceedings earlier. I note that she did have legal advice in 2003. As Mr Craig submitted, she had the opportunity to apply for legal aid earlier even if she did not have the means to pay for a lawyer herself. I also consider that her claim to the de facto relationship lasting after 1 February 2002 is weak. There is an obvious prejudice to Mr Craig in having the notice of claim registered against the title without any claim being brought to determine the merits.
[18] The Property (Relationships) Act has time limits to make sure that couples do divide their property when the relationship comes to an end and that they do that promptly. That is in the interests of promoting a clean break so that the parties are free to lead separate lives without ongoing claims between them. This is a very clear case for saying that any application Ms Maxwell might make under the Property (Relationships) Act against the Cargill Street property is doomed to fail as being time-barred.
[19] I add this. In caveat cases the courts have also removed caveats on the ground of delay in taking proceedings by the caveator. Here I refer to the Court of Appeal’s decision in Varney v Anderson.6 Independently of the time limit rules under the Property (Relationships) Act, the delay by Ms Maxwell in taking
any steps so long after separation also counts against her.
6 Varney v Anderson [1988] 1 NZLR 478 (CA).
[20] During the hearing I put to Ms Maxwell that her claim did seem to be time-barred. She acknowledged as much but did say that she wanted it to be noted that she had at least made the effort to uphold her notice. I acknowledge that. Given the law I have no option but to make an order that her notice of claim is to be removed from the title. I order accordingly.
……………………………….
Associate Judge R M Bell
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