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Mikulicic v Jane

Mikulicic v Jane

Case [2020] NZHC 656 31 March 2020

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1499

[2020] NZHC 656

UNDER section 39 of the Property (Relationships) Act 1976

BETWEEN

FRANICA MIKULICIC

Appellant

AND

ANTHONY BRYCE JANE

Respondent

Hearing: 5 November 2019

Appearances:

D Chambers QC for the Appellant JGA Day for the Respondent

Judgment:

31 March 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 31 March 2020 at 12:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Lady D Chambers QC, Barrister, Auckland
Mr G Presland (appellant’s instructing solicitor), Presland & Co Ltd, Waitakere Mr JGA Day, Law North Ltd, Kerikeri

MIKULICIC v JANE [2020] NZHC 656 [31 March 2020]

[1] This is an appeal under s 39 of the Property (Relationships) Act 1976 (the PRA) against the reserved judgment of Judge L de Jong in the Family Court dated 28 June 2019.1 There were a number of issues in dispute in the Family Court, and on appeal, but they primarily related to the status of a property in Ranui where the parties lived for a number of years during their relationship.

Factual background

[2]The parties were in a de facto relationship for 12 years from 2001 to 2013.2

[3] Each party had been in a previous relationship. Mr Jane had three children aged 21, 18 and 13 at the start of the relationship. The 21 year old had a child. Ms Mikulicic had no children.

[4] Ms Mikulicic and her former husband owned the Ranui property as joint tenants.3 The land was 1471 square metres. Ms Mikulicic, her father and her former husband had built a house on that property themselves.

[5]Ms Mikulicic and her former husband separated around February 2001.

[6] The parties initially lived together in a property Mr Jane rented in Blockhouse Bay. In mid-2002, when Ms Mikulicic completed the purchase of her former husband’s share in the Ranui property as part of their relationship property settlement, the parties moved into the Ranui property.

[7] In May 2009 Ms Mikulicic obtained a new job in Northland and moved there. Mr Jane followed in March 2011.

1      Jane v Mikulicic [2019] NZFC 4888.
2      The parties disagreed whether the relationship commenced in January or April 2001 but agreed this was not important. The Judge found the parties began living together after 21 April 2001 when Ms Mikulicic broke her leg and moved into a property Mr Jane rented.
3      This is common ground – the Family Court Judge’s reference to Ms Mikulicic purchasing the property “from” rather than “with” her former husband in 1997 may be a typographical error.

Family Court judgment

[8] In the Family Court, although there were…

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 Mikulicic v Jane

Details

AGLC: Mikulicic v Jane [2020] NZHC 656
Case: [2020] NZHC 656
Decision Date: 31 March 2020

CaseChat Overview and Summary

This is an appeal under section 39 of the Property (Relationships) Act 1976 (the PRA) against the Family Court's reserved judgment dated 28 June 2019. The primary dispute between the parties, Ms Mikulicic and Mr Jane, related to the status of a property in Ranui, which they occupied during their 12-year de facto relationship. The key issues for determination on appeal were whether there was a valid contracting out agreement, whether the Ranui property was relationship property, whether compensation for work done on the property after separation and for interest and outgoings was payable, and the value of Mr Jane's Sovereign life insurance/superannuation policy.

The Court found no valid contracting out agreement existed, as the Judge in the Family Court was not satisfied there was an offer, acceptance, or intention to create legal relations, especially as any agreement had to comply with the requirements of the PRA. The Court also upheld the Judge's finding that the Ranui property was relationship property under s 8(1)(ee) of the PRA, as it was acquired for the common use or benefit of both parties. The Court further concluded that the Judge was not wrong to defer a decision on compensation for interest and outgoings until evidence of the property's rental value was provided, and that the Judge correctly determined the value of Mr Jane's superannuation policy.

The appeal was dismissed except for the issue of compensation for post-separation contributions, which was remitted to the Family Court for determination. The respondent was awarded costs on a 2B basis, with a modest deduction for the appellant's partial success.

Orders