Ngavaevae v Harrison
[2017] NZHC 2788
•14 November 2017
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 1952BETWEEN
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 RespondentJudgment:
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 continuing an existing relationship, or beginning such a relationship after this date.2
[9] That contention has three components. She will need to satisfy the court she has a reasonably arguable case that:
(a) Her account of the facts is correct, or at least materially so;
(b)Assuming its correctness, the kind of (unconventional) relationship she describes is such that would fall within the scope of the meaning of “de facto relationship” in the Act;
(c) Her claim is not time-barred.
[10] Even once that onus is satisfied, the Court retains discretion to remove the Notice, but the discretion is to be exercised parsimoniously.3 The Court would first need to be completely satisfied that Ms Ngavaevae’s legitimate interests would not be prejudiced by a lapse.4
Is her factual account reasonably arguable?
[11] The factual disputes between the two parties run deep. It is not possible on the limited evidence before me, and without the benefit of cross-examination, to make
definitive findings on many of these differences.
1 Castle Hill Run Ltd v NZI Finance Ltd [1985] 2 NZLR 104 (CA), (1986) 1 NZBLC 102,307 at
106; Doyle v Doyle (No 2) [2004] NZFLR 43 (CA).
2 Property (Relationships) Act 1976, s 4C.
3 Marshall v Bourneville [2013] NZCA 271, [2013] 3 NZLR 766 at 775.
4 Pacific Holmes Ltd (in receivership) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA) at
656.
[12] For present purposes, it is in any case not necessary to do so. The sole question is whether there is enough for me to be satisfied that her factual narrative is at least reasonable arguable.
The nature of the parties’ relationship
[13] The largest areas of contention concern the different understandings about the nature of the parties’ relationship. It is common ground that the parties met in 1988, and started dating soon after. But the parties agree on little else.
[14] I begin with Ms Ngavaevae’s account.
[15] In brief, she says they were in a de facto relationship from 1988 until 2007, apart from a brief interruption between 1991 and 1992. Prior to this interregnum, she says they lived together as a de facto couple at Mr Harrison’s property at Premier Avenue, Point Chevalier.
[16] Between around 1992 and 2007, Ms Ngavaevae deposes they settled into a routine as a de facto couple which she describes as follows:
(a) Mr Harrison would visit her and the two girls at their place (first in Kingsland and then at Terry Street) all day Saturday and on Tuesday evenings.
(b)Invariably on these occasions he would stay over in her bed until the morning and they were intimate during these times. Indeed, she says that he usually brought a change of clothes with him, and kept toiletries at her home.
(c) They would celebrate Christmas with both families; celebrate birthdays together and other important family events; attend the girls’ sports, school events, and occasionally church; and even go to dinner with his work colleagues from time to time. She says family and friends recognized their relationship. She would sometimes be introduced by Mr Harrison as his “missus”.
[17] Ms Ngavaevae acknowledges this was an unconventional arrangement, which she puts down to his “womanizing”. It would seem she was unaware where he would stay on the other nights, at least after he sold the Premier Ave property in 1993.
[18] Her words describe the arrangement best: “I accepted he spent time with other women but I always thought we were his family and he would come back to us”. Counsel for Mr Harrison interpreted this as an admission that he had in some sense left the relationship behind. A more nuanced reading, however, is that there was a consistent routine that “worked for them”, and still involved them sharing the intimacy of a married couple and operating as a family.
[19] The position changed in or around 2007, she continues, when she found out that Mr Harrison had a little boy from another relationship. She suggests it was at this point she realised there was another family in Mr Harrison’s life. The relationship ended shortly after. That, at least, is her narrative.
[20] Mr Harrison’s is another story.
[21] Mr Harrison claims no recollection of this supposed de facto relationship. His position is that there was an ‘off and on’ relationship between 1988 and 1990, during which time their first child, Natasha, was conceived. He also acknowledges, of course, that their second child, Danielle, was conceived during a further, brief sexual liaison in 1993.
[22] But he flatly denies most of Ms Ngavaevae’s factual assertions. While he cannot remember exactly when the relationship ended he is sure it was before he bought Premier Avenue in 1993, and he denies ever living together in that property. While he accepts regularly visiting Ms Ngavaevae’s home and participating in family outings, activities and celebrations, he says this owed solely to his devotion to his daughters, not to any romantic involvement with Ms Ngavaevae. He rejects any suggestion that he stayed over with her.
[23] Instead, he stresses that during the period Ms Ngavaevae claims they were in a de facto relationship, he was in fact married to other women. It appears he was in a
relationship with one woman between 1995 to 2005, whom he married in 1999; and then with another from 2005, whom he married in 2010.
[24] He also points out Ms Ngavaevae was financially independent, and in fact that she was supported by a Domestic Purposes Benefit for a couple of brief periods while she was not working. There appears to be some disagreement as to whether Mr Harrison paid any child support to her.
The property
[25] There are also divergent views concerning the property at 38 Terry Street, which Mr Harrison purchased in 1999.
[26] Ms Ngavaevae says the object of the purchase was to provide a home for her and their daughters, indeed that Mr Harrison promised the property would be put in trust for her and their daughters. Specifically, the three units on the property were perfect for their purposes: she and the girls would be able to live in one flat while receiving the income from the other two to cover the mortgage and other expenses.
[27] Consistent with that story, her position is that they searched for properties together, both attended the 38 Terry St auction and made a joint decision to go ahead with the purchase. She accepts that Mr Harrison paid a deposit of around $30,000 and also arranged a mortgage, but she maintains that the payments for property rates, mortgage, insurance, and maintenance were all paid by her out of her income and the rent from the other two flats.
[28] Mr Harrison candidly accepts he obtained Ms Ngavaevae’s approval to the purchase, that he wanted to house her and their daughters, and that they have continued to live at the property from the outset. He also acknowledges that all three now occupy all three units as an extended family group.
[29] But at this point his account parts company. He denies ever promising to put the property in trust; he posited that the property simply represented an opportunity for him to invest in rental property. Importantly, he insists that Ms Ngavaevae’s stay in the unit was governed by a tenant-landlord relationship. This was a convenient
arrangement commercially, he says, as well one that ensured ready access to his daughters.
The evidence
[30] It is nigh on impossible to determine truth from fiction by a simple comparison of the two accounts. The court must fall back on the (admittedly limited) documentary and affidavit evidence adduced by both parties.
[31] In support of his account, Mr Harrison has produced an undated tenancy agreement signed by Ms Ngavaevae. It appears genuine, and Ms Ngavaevae accepts she must have signed the agreement, although she professes to have no recollection of seeing it.
[32] Ms Ngavaevae counters with a “catalogue” of photos showing the two of them together, or with their two daughters, which to the reasonable observer speaks strongly of a committed, and loving relationship. She also produced jeweller’s certificates for a three ruby and diamond rings, which she says he gifted to her in 1988 and 2002. Accompanying the certification is a photograph of her wearing the two diamond rings. Another document she produced was a health insurance policy covering herself, Mr Harrison, and their daughters.
[33] Both parties have the benefit of various affidavits filed in support of their respective positions. There are affidavits in support of Mr Harrison from his first wife and then also his flatmate from the Premier Ave property: both refute any suggestion of an ongoing romantic or sexual relationship between the two parties.
[34] Ms Ngavaevae’s pastor, on the other hand, deposes to seeing the parties at church together, and to his honest belief that they were in a relationship. He recounts counselling Mr Harrison to marry Ms Ngavaevae. Whether Mr Harrison acquiesced in the pastor’s reading of the nature of the parties’ relationship is an unanswered question, but on the current evidence I cannot assume that Mr Harrison rejected it. Tellingly, the two daughters also side with their mother’s account. For instance, they remember him routinely staying over and their parents being sexually intimate during these times. They also recall their parents acting like a
couple during all kinds of family outings. They describe their shock when they found out it had all been a lie.
What can we say about the facts?
[35] The evidence only takes us so far. The tenancy agreement is troubling to Ms Ngavaevae’s case, but much remains unclear about the parties’ commercial relationship. I am unwilling to rule out her case on this basis. By the same token, the documentary evidence adduced by Ms Ngavaevae appears compelling, but Mr Harrison unsurprisingly offers a range of explanations which, if true, may well deflate her claims.
[36] The affidavit evidence is divided, and one can only presume some of the deponents are either not entirely independent or objective, or else are misconceived as to the reality of the relationship. Counsel for Mr Harrison seeks to discredit the daughters’ affidavits because of their young age during this period.5 I acknowledge their youth — although, to put that in perspective, the oldest daughter was around
17 when the relationship supposedly ended in 2007 — but I am not prepared to throw out their clear and consistent evidence solely on that basis. One could also say they are in a privileged position to understand the truth of their parents’ relationship.
[37] In short, unanswered questions abound. Without the benefit of a full trial, the court remains largely in the dark as to truthfulness of the conflicting accounts. Counsel for Mr Harrison overreaches the evidence by her submission that Ms Ngavaevae patently lacks an evidential foundation. Such a definitive finding is unsafe in my view.
[38] The long and short of the matter is that I am satisfied that Ms Ngavaevae’s account is at the very least arguable.
Is it reasonably arguable the kind of relationship she describes would qualify
5 Chapman v P HC Wellington CIV-2007-485-1372, 2 July 2009 at [77] and [84].
under the Act?
[39] The Act provides that relationship property is to be shared equally between parties to a qualifying de facto relationship.6 The family home is particularly considered relationship property.7
[40] Section 2D defines a de facto relationship for the purposes of the Act, and outlines the indicia the court looks to in determining whether a couple falls within that definition:
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) who:
a) Are both aged 18 years or older; and
b) Live together as a couple; and
c) 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.
6 Act, s 11.
7 Section 8.
[41] These considerations are not exhaustive, and no one element is a prerequisite to establishing a qualifying relationship. Still, they “provide a useful pathway in the evaluative exercise which the court is required to take”.8
[42] If her account of the facts is accepted, or largely so, there is much that weighs in favour of their relationship qualifying as a de facto relationship under s 2D. In particular, on her narrative:
(a) They were in a relationship for almost two decades, during which time they operated as a couple and were viewed by others as such.
(b)They had a degree of shared care and support for their two children, even if she did she the bulk of the parenting;
(c) They shared their lives, both in the weekly routine of his regular visits, which often involved sexual intimacy, but also in their shared participation in key family events and milestones; and
(d)Perhaps most significantly, he agreed to have a second child with her, and he bought a house she particularly approved of for her and their two children to live in. Consistent with that, the property has been their home for years. (Even though he now casts the relationship as simply one of landlord and tenant, that is a deliberate distortion of a more complex reality).
[43] That said, there are some significant wrinkles:
(a) They were largely financially independent, and apparently even in a landlord and tenant relationship for some unspecified time.
(b) They did not cohabit full-time; and
8 C v S [2017] NZHC 1484 at [74].
(c) He was married to other women throughout most of their relationship, and it looks likely these marriages were his main relational priority.
[44] Each of these three ‘wrinkles’ requires further analysis.
The importance of co-habitation and financial interdependence
[45] The Act is social legislation: it reflects, or at least should reflect, contemporary social mores. The Act, and its judicial interpretation, must therefore be responsive to developments in social mores. In that regard, these are interesting times. The Law Commission observes that “relationships are now much more diverse and this diversification is expected to continue”.9 In fact, ‘unorthodox’ relationships are more often than not the ones that end up under the judicial microscope.
[46] These changing social mores have influenced judicial readings of the test in s
2D. It is now recognised that parties’ separate finances are not a “reliable indicator of the nature of the relationship between them”. After all, separate financial arrangements are these days a common feature of settled de facto or married couples.10
[47] Equally well-established is the principle that cohabitation is not an essential prerequisite of a de facto relationship.11 In fact, if New Zealand statistics are tracking along the same lines as the United Kingdom and Australia, then just under 10 per cent of adult relationships will not involve cohabitation.12 As the High Court observed in G v B:13
There may be compelling reasons why a couple do not share a common residence for substantial periods of time whilst remaining totally committed to a long-term relationship.
9 Law Commission Dividing Relationship Property: time for a change? Te mātatoha rawa tokorau
– Kua eke te wā (NZLC, SP41, 2017) at [4.23].
10 W v L [2017] NZHC 388, [2017] NZFLR 299 at [31].
11 G v B [2006] NZFLR 1047, (2006) 26 FRNZ 28 (HC) at [32]; C v S [2017] NZHC 1484 at [41]- [43].
12 Law Commission Dividing Relationship Property at [4.25]; see also Law Commission Relationships and families in Contemporary New Zealand – He hononga Tangata, he hononga whānau i Aotearoa o nāianei (NZLC SP22, 2017) at Chapter 1.
13 G v B [2006] NZFLR 1047, (2006) 26 FRNZ 28 (HC) at [33].
[48] But can ‘womanising’ (as she originally saw it) or else ‘being married to another woman’ constitute such a “compelling reason” — as opposed to say, work or family commitments or even a lifestyle decision? Certainly, the reasons for parties not cohabiting or not sharing finances will influence whether such behaviour is seen as indicating a lack of serious commitment to a shared life. But emphasising some features of the relationship may well misrepresent a relationship that in reality involved two people who were deeply and intimately attached to each other.
Contemporaneous relationships
[49] The Act makes provision for contemporaneous relationships: whether two de facto relationships or a marriage or civil union and a de facto relationship. In such cases, the property order relating to one de facto relationship will be satisfied from property attributable to that specific relationship.14
[50] It would be fair to say that establish a contemporaneous de facto relationship is likely to be difficult in practice. On my reading of recent authorities, assumptions of exclusivity still linger on in judicial interpretations of a ‘qualifying relationship’ under the Act.
[51] Clifford J in Thompson v Public Trust opines:15
It seems to me that, whilst the law accepts that two de facto relationships may exist at the one time, that is unusual. Moreover, the fact that a person continues a relationship with another person … whilst at the same time entering into and developing a second relationship with another are, in my view, relevant considerations for the Court when determining whether that second relationship has reached the stage of a de facto relationship.
[52] This logic is more explicitly spelt out in M v P.16 After tracing the legislative purpose and history of the Act, Miller J observes that:17
… a mutual acceptance of exclusivity, relative to other potential partners in general, inheres in the notion of living “together” as a “couple”… The
14 Act, ss 52A and 52B. Bigamy, however, remains an offence under ss 205-207 of the Crimes Act
1961.
15 Thompson v Public Trust [2014] NZHC 1374, [2014] NZFLR 902 at [43].
16 M v P [De facto relationship] [2012] NZHC 503, [2012] NZFLR 385.
17 At [26].
statutory indicia of a shared life are broadly consistent with a substantial degree of exclusivity in qualifying relationships.
[53] Miller J goes on:18
… contemporaneous de facto relationships are not likely merely because the legislation admits their existence. On the contrary, a contemporaneous de facto relationship with a different partner tends to show that the relationship before the court lacks the character of a life lived as a couple. The legislation governs division of the property of a relationship between two people and there must be natural limits to one’s capacity to spend the only life that one has in contemporaneous bilateral relationships with more than one person.
[Emphasis added]
[54] The rationale, it seems, is that a de facto relationship requires a joint mental commitment to “live together as a couple”,19 and a court will be reluctant to recognise such an intention when the relationship lacks the essential feature of exclusivity.
[55] And indeed, it is perhaps tempting to assume that Mr Harrison’s marriages to other women indicates he had no intention to fully share his life with Ms Ngavaevae in the manner contemplated by the Act. This is especially so if (as Mr Harrison maintains) those other relationships occupied the lion’s share of his time and relational energy.
[56] Still, at least in principle, the Act makes room for situations such as we find in this case, which the court must be careful not to down play in favour of personal bias. And to my mind, there are compelling reasons to resist that temptation to assume they were not in a de facto relationship.
[57] For one, the jurisprudence in this area is still embryonic. Courts are only just beginning to wrestle with the novel complexities presented by various forms of contemporaneous relationships. In particular, difficult questions remain as to how and to what extent the judicial dictum in M v P can be read consistently with the Act’s
unabashed acknowledgement that contemporaneous relationships are possible.
18 At [29].
19 M v P [De facto relationship] [2012] NZHC 503, [2012] NZFLR 385 at [27].
[58] Second, the present facts raise additional complications. Specifically, on Ms Ngavaevae’s account there appears to be an element of deceit, or at least serious misunderstanding, in the parties’ relationship. Ms Ngavaevae accommodated Mr Harrison’s womanising but had no knowledge of — and quite possibly would not have consented to — Mr Harrison conducting two full-blown, committed relationships at the same time. The daughters also accuse him of deception. As one daughter deposes:
I’ve known for a long time about the other women. However, I always believed we were his family and they were his side women, nothing important.
[59] On the one hand, it might be suggested that this weighs against there being a de facto relationship for the reasons discussed earlier. Yet Mr Harrison appears to have gone out of his way to keep the relationship alive, and to reinforce Ms Ngavaevae’s belief that he was fully committed to sharing his life with her, even if only ‘part-time’. So on the other (and I would suggest dominant) hand, I am not sure the Act would tolerate Mr Harrison escaping his obligations by effectively playing off his two relationships one against another. Going that route opens up the possibility of exploitation of a vulnerable party, and of a dominant party benefiting from their own deceit.
Summary
[60] There is no denying that Ms Ngavaevae’s claim faces potential legal hurdles. Even if true, her factual narrative does not provide an easy ‘fit’ within the contours of a qualifying relationship under the Act.
[61] But there is enough flexibility in the Act, and sufficient pointers to the potential future trajectory of judicial interpretation for me to be satisfied she has an arguable case at law.
Is Ms Ngavaevae’s claim time-barred?
[62] The court has a discretion to grant an extension of time in s 24(2), and the principles guiding that discretion are set out in May v May. The Court will look to factors such as the length of the delay; adequacy of the explanation for that delay; the
substantive merits of the applicant’s claim; and the prejudice which the delay may have caused to the opposing party.20
[63] I have already commented on the merits: her case is arguable but not overwhelming. The delay is considerable but not necessarily prohibitively so.21 In terms of prejudice, Mr Harrison contends that he has arranged his financial affairs so that the property and mortgage secured against the property are his only assets and liabilities. He says the property is the only asset he can borrow against to repay any debt he owes, but the Notice prevents him from being able to deal with his property as he chooses.
[64] The key issue, in my view, is the adequacy of the explanation for the delay. Ms Ngavaevae’s explanation is simply that she assumed, until very recently, that the property was still held in trust for her and their two daughters.
[65] This explanation is perhaps surprising given that she supposedly discovered the extent of his lies in 2007. Counsel for Mr Harrison also points out that he and his first wife, Sau, moved into the property with Ms Ngavaevae in 2006. One might have expected Ms Ngavaevae to have clarified her legal rights in the wake of these developments.
[66] Still, I am not prepared to write off her explanation as inherently implausible;
it remains sufficiently arguable for the purposes of this application.
Conclusion
[67] In the round, I consider Ms Ngavaevae’s claim reasonably arguable at the levels of both fact and law.
[68] Put simply, it is not possible on the evidence as it stands to make safe conclusions about the nature of the parties’ relationship up to 2007. Is this a case of a
person who so organised his life and financial affairs as to enjoy a relationship with
20 May v May (1982) 1 NZFLR 165, (1982) 5 MPC 92 at 169.
21 See Ritchie v Ritchie [1992] NZFLR 266 (HC), (1991) 8 FRNZ 197.
two “wives” and families? And if so, what are the implications of such a finding? These are important unresolved questions.
[69] My findings on the evidence weigh strongly in favour of sustaining the caveat, subject only to the court’s overriding discretion to withhold such a remedy. And, in the circumstances, I see no reason to exercise that discretion.
[70] Without discounting the prejudice faced by Mr Harrison, Ms Ngavaevae would also face considerable prejudice. She faces the prospect of losing the home she lives in with her daughters, and so having nothing left to satisfy her claim by the time her substantive case is heard.
Result
[71] The application to sustain the Notice is granted on terms that leave is reserved for Mr Harrison to come back to court if Ms Ngavaevae does not pursue her claim expeditiously.
[72] 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.
Associate Judge Sargisson
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