Ngavaevae v Harrison - [2017] NZHC 2788

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001795 [2017] NZHC 2788

UNDER
the Law Transfer Act 1952 and the

Property (Relationships) Act 1976

IN THE MATTER

of an application under s 145A(3) of the
Land Transfer Act 1952

BETWEEN

TANGIMETUA TERUAPUKA NOOSANTORIUM KAPUMARE NGAVAEVAE

Plaintiff

AND

GUY WILLIAM HARRISON Defendant

Hearing: 2 November 2017

Appearances:

K Wiseman for the Applicant
R Evans for the Respondent

Judgment:

14 November 2017

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 14 November 2017 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date....................................... Solicitors:

Vodanovich Law Ltd, Auckland
Rhonda G. Evans, Auckland

K Wiseman, Auckland

NGAVAEVAE v HARRISON [2017] NZHC 2788 [14 November 2017]

Introduction

[1] The applicant, Ms Ngavaevae, seeks an order sustaining her Notice of Claim registered over a property at 38 Terry St, Blockhouse Bay. Though Ms Ngavaevae has lived there some 17 years, the property is registered solely in the name of Mr Harrison, the respondent.

[2] Ms Ngavaevae’s primary argument is that she and Mr Harrison were for many years in a de facto relationship — albeit an unconventional arrangement where Mr Harrison would only stay with her at the property two nights a week. She contends she has an arguable interest in the property under the Property (Relationships) Act
1976 (“Act”).

[3] Mr Harrison accepts they had brief sexual liaisons; after all, they have two daughters together. But he denies any de facto relationship, pointing to the fact that he had two consecutive marriages with other women during the period in question. Any ongoing involvement with Ms Ngavaevae he puts down to a desire to stay involved in the lives of their two daughters.

[4] For the reasons that follow, I am satisfied that Ms Ngavaevae has a reasonably arguable interest in the property. I also consider the interests of justice favour sustaining the Notice pending a full trial of the substantive issues.

Legal framework

[5] I begin with the law.

[6] A Notice of Claim is lodged on a property pursuant to s 42 of the Act. The provision is designed for the protection of partners’ rights, and it has the same effect as a caveat lodged under s 137 of the Land Transfer Act 1951. Ms Ngavaevae registered a Notice of Claim on 28 April 2017.

[7] An application to lapse a Notice is made under s 145A of the Land Transfer

Act. After Mr Harrison took this step, Ms Ngavaevae filed the present application on

3 August 2017 to sustain the Notice, and an interim order was made to sustain the caveat.

[8] In considering whether to grant her application, the court must determine whether Ms Ngavaevae has a reasonably arguable case for the interest claimed. She has the onus.1 Her case essentially turns on whether it is arguable that the parties were in a de facto relationship after 1 February 2002 — whether…

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 Ngavaevae v Harrison

Details

AGLC: Ngavaevae v Harrison [2017] NZHC 2788
Case: [2017] NZHC 2788
Decision Date: 14 November 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Ngavaevae v Harrison, the plaintiff, Ms. Ngavaevae, sought an order sustaining her Notice of Claim registered over a property at 38 Terry St, Blockhouse Bay, which is registered solely in the name of Mr. Harrison, the defendant. Ms. Ngavaevae argued that she and Mr. Harrison were in a de facto relationship and that she has an arguable interest in the property under the Property (Relationships) Act 1976. Mr. Harrison accepted they had brief sexual liaisons but denied any de facto relationship, pointing to the fact that he had two consecutive marriages with other women during the period in question. The court was required to determine whether Ms. Ngavaevae had a reasonably arguable case for the interest claimed. The court found that Ms. Ngavaevae's account of the facts was at least reasonably arguable and that it was reasonably arguable that the parties' relationship would qualify under the Act. The court also found that Ms. Ngavaevae's claim was not time-barred. The court concluded that the interests of justice favoured sustaining the Notice pending a full trial of the substantive issues. The application to sustain the Notice was granted on terms that leave is reserved for Mr. Harrison to come back to court if Ms. Ngavaevae does not pursue her claim expeditiously. As costs follow the event under the statutory costs regime, Ms. Ngavaevae is entitled to an order for costs. The respondent is to pay her costs of and incidental to her application on a 2B basis plus disbursements as fixed by the Registrar.

Orders