Rennie v Baker
[2022] NZHC 721
•8 April 2022
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2021-419-25
[2022] NZHC 721
IN THE MATTER of the Property (Relationships) Act 1976 BETWEEN
RENNIE
Applicant
AND
BAKER
Respondent
Hearing: On the papers Appearances:
Applicant in person
M J Roots for the Respondent
Judgment:
8 April 2022
JUDGMENT OF GAULT J
(Applications for leave to appeal and to adduce further evidence)
This judgment was delivered by me on 8 April 2022 at 4:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors:
The Applicant
Mr M J Roots, Solicitor, Hamilton
RENNIE v BAKER [2022] NZHC 721 [8 April 2022]
[1] Ms Rennie seeks leave to appeal my judgment dated 30 November 2021.1 Leave to appeal is required under s 60 of the Senior Courts Act 2016 because my decision dismissed Ms Rennie’s appeal from a Family Court decision in relationship property proceedings she brought against Mr Baker.2
[2]Ms Rennie also applies for leave to adduce further evidence on appeal.
[3] Mr Baker opposes both applications for leave. Following a telephone conference, I directed the filing of submissions in advance of determination of Ms Rennie’s leave applications on the papers.3 Ms Rennie only filed signed applications and her sworn affidavit, plus amended submissions, on 28 February 2022, after the respondent’s submissions had been filed in accordance with the timetable directions.
Factual background
[4] The factual background is set out in my judgment and need not be repeated in full.
[5] The parties met around May 2012. Ms Rennie lived in Auckland and had weekend and other contact with her four school-aged children. Mr Baker lived in Raglan and worked in Hamilton. He had a three year old daughter. She and her mother lived in the same home as Mr Baker in a house-sharing and co-parenting arrangement. The parties met when they could, including at hotels. From an early stage, Mr Baker started to talk of a future together.
[6] In September 2012 Ms Rennie rented a home in Hillsborough in Auckland. Mr Baker sometimes stayed but the extent was disputed.
1 Rennie v Baker [2021] NZHC 3245. This judgment also anonymises the parties.
2 Rennie v Baker [2021] NZFC 588.
3 Minute dated 10 February 2022. As Ms Rennie’s applications were unsigned, Mr Baker initially questioned whether the appeal was filed in time by 19 January 2022 and, if not, whether the Court had power to extend time. However, s 60 does not appear to preclude extensions of time and Mr Baker did not pursue the late filing issue.
[7] In early 2013 Mr Baker put Ms Rennie down as next of kin / emergency contact and put ‘partner’ in his relationship status at work.
[8] In February 2013 Mr Baker put his Raglan house on the market, but in April 2013 he took a new job in Hamilton. In May 2013 he secured a contract to sell his Raglan house. He indicated that he was prepared to move to Auckland to make the relationship work.
[9] In August 2013 Mr Baker settled the sale of his Raglan house and moved into a dwelling on a friend’s property in Raglan.
[10] In January 2014 Ms Rennie signed a tenancy application to move to Epsom. She named Mr Baker as her partner although he did not sign. Again, Mr Baker sometimes stayed but the extent was disputed.
[11] In April 2014 Mr Baker suggested to Ms Rennie he may be able to move to Auckland for work. But that same month he signed a new tenancy in Raglan.
[12] In October 2014 Mr Baker signed an agreement to purchase 0.92 hectares of bare land at [withheld] near Raglan. He said the decision to purchase was entirely his whereas Ms Rennie referred to the prospect of land being purchased in Raglan for the parties. Mr Baker sent Ms Rennie house plans.
[13] Also in October 2014 Ms Rennie applied for a position in Auckland as an events coordinator.
[14] In December 2014 Ms Rennie moved to Raglan to live at Mr Baker’s rental place (with her daughter when not at boarding school).
[15] In February 2015 a tender invitation was prepared, in the names of both parties, to build a house on the bare land.
[16] That month Mr Baker’s mother died in Wales, and the parties travelled there together to attend the funeral. Soon after returning to Raglan, the parties had a
significant argument. Eventually, Ms Rennie left. On 10 March 2015, Ms Rennie rented a property in the Kaipara Harbour region.
[17] The parties separately attended a festival in April 2015 and a witness suggested Mr Baker was stalking Ms Rennie. Subsequently, he found her Kaipara address and turned up uninvited. He indicated in correspondence around this time that he hoped to reconcile. One email referred to the house, saying “hopefully it will be our home”.
[18] A June 2015 kitchen plan for the proposed house included both names. Over that winter, Ms Rennie went to Raglan at weekends. In August 2015 the parties went on holiday to Vanuatu. That same month Mr Baker described a barn concept plan as “our project”. There were continued discussions about building on the property.
[19] Correspondence through the following months indicated the parties were arguing about the relationship. Mr Baker referred to their having made a plan to be together and develop the land, and subsequently that he would give her a share of any profits when sold. Reconciliatory discussions occurred again. The parties corresponded about whether to go ahead with the project together.
[20] Mr Baker alleges that Ms Rennie assaulted him at the Raglan house on 6 December 2015 and then left. There was further reconciliation and further argument over the December–January period. Mr Baker continued to send through house plans. He assisted Ms Rennie to move her belongings back from Kaipara to Raglan. Ms Rennie’s final rental payment at Kaipara was dated 15 January 2016. They lived under the same roof in that month. Mr Baker opened a joint bank account.
[21] But financial arguments followed and in February 2016 Ms Rennie moved to her sister’s house. Ms Rennie returned to Raglan at times over the next months, but issues continued. There was a family harm incident on 9 March 2016 with each claiming to be the victim. In June 2016 they made a trip to Fiji together. Ms Rennie says she ended the relationship on 11 August 2016.
Family Court decision
[22] After an eight day hearing, the Judge concluded in a detailed reserved judgment that the parties lived together as a couple for two short periods, from late October 2014 to the end of February 2015, and from December 2015 to February 2016. Thus, the parties were in two de facto relationships of short duration.
[23] The Judge also concluded that the principal asset in dispute, the property at [withheld], was Mr Baker’s separate property as he acquired it before the de facto relationship began in October 2014 and not in contemplation of that relationship.
[24] The Judge also concluded that Ms Rennie had not made out grounds for division of any other property under s 14A of the Property (Relationships) Act 1976 (PRA) applying to de facto relationships of short duration. The Judge was not satisfied that failure to make an order would result in serious injustice.
High Court judgment
[25]On appeal, I concluded that:
(a)Largely agreeing with the Judge, the parties lived together as a couple from October/November 2014 to the end of February 2015, and from December 2015 to February 2016, and so were in two de facto relationships of short duration.
(b)In those short periods, I agreed with the Judge that Ms Rennie’s contribution was not substantial in financial or non-financial terms, just as Mr Baker’s contribution was not substantial. I did not consider the Judge was wrong to decline to find that the failure to make an order for the division of relationship property would result in serious injustice.
(c)The [withheld] property acquired in October 2014 was not acquired with a serious expectation of a de facto relationship and in any event there was insufficient evidence to conclude that at that time the property was intended for the common use or common benefit of both partners. Accordingly, I agreed with the Judge that it was not relationship property.
Applicable legal principles
Test for leave for a second appeal
[26] Section 39B(1) of the PRA provides that the provisions of the Senior Courts Act 2016 relating to appeals to the Court of Appeal against a decision of the High Court apply to an order or decision of the High Court under the PRA.
[27]It is well established that to obtain leave to bring a second appeal:4
… [t]he appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.
Test for further evidence
[28] Section 39B(3) of the PRA provides that the High Court or the Court of Appeal may receive further evidence if it thinks that the interests of justice so require. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial.5
4 Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Snee v Snee (1999) 13 PRNZ 609 (CA) at [22]; and Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [30]-[31].
5 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192; affirmed in Paper Reclaim Ltd v Aotearoa International Ltd (further evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6], n 1.
[29] As the application for leave to adduce further evidence has been filed in this Court together with the application for leave to appeal,6 I will address it so that, if granted, I can consider the further evidence when determining whether to grant leave to appeal.
Late material
[30] Before turning to the applications, I deal with Mr Roots’ preliminary submission for Mr Baker that I should determine the applications on the documentation filed by 25 February 2022, and not based on the late material filed by Ms Rennie. As indicated, Ms Rennie only filed signed applications and her sworn affidavit, plus amended submissions, after the respondent’s submissions had been filed in accordance with the timetable directions.
[31] The signed applications and affidavit were unchanged from the earlier unsigned versions. The only change was to Ms Rennie’s submissions in support of her application for leave to adduce further evidence. Ms Rennie’s delay was unhelpful but was in part the result of unfamiliarity with the Court requirements now that she is representing herself and in the context of COVID-19 restrictions. There is no prejudice to Mr Baker. I accept the late documents.
Leave to adduce further evidence
[32] Although Ms Rennie filed her own affidavit (to which Mr Baker responded), Ms Rennie’s application for leave to adduce further evidence relates to the affidavits of Ms Po and Ms Smart and a letter from Mr Ranchhod. The parties’ own affidavits contain some material relevant to the application to adduce the further evidence but also contain a good deal of evidence about their relationship that is plainly not fresh evidence and is in large part inadmissible submission.
6 Rather than in the Court of Appeal under r 45 of the Court of Appeal (Civil) Rules 2005 subsequent to leave being granted.
Ms Po
[33] The statement of Ms Po, a law student assisting Ms Rennie prepare for the further appeal, raises two issues. First, she refers to a conversation she had with Mr Robert Bailey. Ms Po says that on 7 December 2021 she contacted Mr Bailey and made him aware she had a copy of a tenancy agreement between him as landlord and Mr Baker as tenant dated and signed 12 August 2013. Ms Po says she notified Mr Bailey that she/Ms Rennie had confirmation from NZ Police that the signature on the agreement did not belong to him, and that a company search confirmed the signature was not his. Ms Po said she believed the tenancy agreement was fraudulent as there is also a section pertaining to insulation which did not come into effect until 2016. She says she asked Mr Bailey if he was aware of the tenancy agreement and he replied “no” but that he might have had an agreement. He said he would have to have a look. She subsequently sent an email to him requesting his confirmation of the conversation, but he had not replied.
[34] Secondly, Ms Po’s statement deals with the reason for Mr Bailey not giving evidence in the Family Court. She says she asked him if he was in England on 9 November 2020. He replied he was not; he was in New Zealand. She says she asked him why he was not present at the hearing as a witness for Mr Baker and he replied that he was not aware of the hearing and had previously withdrawn his affidavit. She says he said that Mr Baker was aware he had withdrawn it, and he had had no contact with Mr Baker for many years.
[35] In relation to this second issue, Ms Rennie’s submissions refer to a letter from Mr Baker’s counsel to her counsel (annexed to his affidavit in support of an interlocutory application for a pre-hearing ruling on evidence made without notice on 4 November 2020) advising that Mr Bailey will not attend the hearing, stating “his mother is unwell and he is flying to the UK prior to then travelling to Portugal”. Ms Rennie submits that she was deprived of the opportunity to cross-examine Mr Bailey.
[36] Ms Rennie submits that Ms Po’s evidence was not available at the time of the earlier Court hearings. However, there is no explanation why this conversation with Mr Bailey did not occur before December 2021, and at least before the High Court appeal. In those circumstances, I consider it could with reasonable diligence have been produced in the High Court appeal, if not before. It is therefore not fresh evidence.
[37] Turning to whether the proposed further evidence is credible and cogent, I make three points. First, much of the statement is hearsay and inadmissible to prove the truth of the contents of the statements made; in particular, the statements attributed to Mr Bailey and to NZ Police.
[38] Secondly, it is common ground that Mr Bailey was not called as a witness and there is no suggestion that the Judge relied on his affidavit. A preliminary section of the judgment recorded that Mr Baker had filed an affidavit from Mr Bailey and that he was required for cross-examination, and then that he was not listed as a witness who appeared for cross-examination.7 The Judge said that the witnesses who were not available for cross-examination were thus subject to r 169 of the Family Court Rules 2002 and their affidavits were disregarded.8 There is no reference to Mr Bailey in the section of the judgment where the Judge dealt with the evidence of Mr Baker’s witnesses.
[39] In the factual background summary of the judgment, the Judge said that in August 2013 the sale of the Raglan property went through and Mr Baker signed an agreement for a tenancy in Raglan, being a dwelling on a property owned by his friend Rob Bailey. The Judge said that Mr Baker rejected Ms Rennie’s description that upon the sale of his home he moved to live with his friend Rob Bailey in Raglan, and that rather, it was an independent rental; Mr Baker said he had no intention of moving to Auckland as alleged by Ms Rennie.9
7 Rennie v Baker [2021] NZFC 588 at [7].
8 At [8].
9 At [50].
[40] The Judge’s subsequent reference to Mr Bailey and the tenancy agreement was in relation to the parties’ degree of mutual commitment to a shared life. After referring to Mr Baker’s expressed commitment to a shared life in May 2013, the Judge stated:10
However, in August 2013 [Mr Baker] signed the tenancy for 3915A SH 23 Raglan. This signalled a decision to remain in Raglan, as opposed to then moving to Auckland to be with [Ms Rennie].
[41] These few statements about the tenancy were no doubt based on the document itself and/or Mr Baker’s evidence.
[42] Thirdly, in any event, it was common ground that Mr Baker lived in Raglan and worked in Hamilton – it was only the extent to which he stayed with Ms Rennie in Auckland that was in dispute. Thus, even accepting that Ms Rennie contested the authenticity of the document in the Family Court (it was not a focus in the High Court), it was only relevant to Mr Baker’s credibility. But the Judge had reservations about Mr Baker’s credibility as well as Ms Rennie’s. For example, in relation to the issue in dispute, the Judge said:11
I find it is likely [Mr Baker] now downplays the frequency with which he would visit [Ms Rennie] in Auckland.
[43]This is also evident in my analysis of the relevant period, which included:12
I agree with the Judge that there was no common residence prior to or while [Ms Rennie] had the rental property in Hillsborough from September 2012 to January 2014 even though [Mr Baker] sometimes stayed nights there and his evidence likely minimised the frequency.
[44] For these reasons, I do not consider the further evidence is particularly cogent in relation to the issues in dispute.
Ms Smart
[45] Ms Smart was a witness called by Ms Rennie in the Family Court. She was Ms Rennie’s landlord at the Hillsborough property from September 2012 to early
10 Rennie v Baker [2021] NZFC 588 at [417].
11 At [386].
12 Rennie v Baker [2021] NZHC 3245 at [55](b).
2014. Her statement explains that her daughter, Sarah Hendry, was responsible for her landlord duties when she was not available, as was the case in January 2014.
[46] Ms Smart’s statement is dated 7 July 2021, before the High Court hearing. Ms Rennie submitted that she was advised that she could not submit this affidavit at the High Court hearing; that it was out of time. However, there is no evidence about that advice, nor why it was incorrect. In the absence of such evidence, I consider the statement could with reasonable diligence have been produced in the High Court. Alternatively, unless the statement could not with reasonable diligence have been obtained earlier and produced in the Family Court, such advice would have been correct. In the absence of an explanation, I consider the further evidence could with reasonable diligence have been produced in the Family Court. It is not fresh evidence.
[47] Ms Rennie submitted that Ms Smart’s evidence is relevant to the authenticity of the Epsom property agreement, in relation to which the Family Court Judge had found her to be misleading. But Ms Smart’s confirmation of her daughter’s role when she was not in New Zealand during this period adds little to the issues in dispute. The Judge was referring to Ms Rennie being misleading to name Ms Smart as her employer and someone else, Ms Smart’s daughter, as her landlord. Further, the issue was not the authenticity of the tenancy agreement but whether Mr Baker had allowed his name to be on it. Again, while that was relevant to credibility, the substantive issue was the extent to which Mr Baker stayed with Ms Rennie in Auckland, rather than whether he had allowed his name to be on the tenancy. Even if he did so (despite his name not being on the bond), I do not consider the further evidence of Ms Smart is particularly cogent in relation to the issues in dispute.
Mr Ranchhod
[48] Rather than an affidavit from Mr Ranchhod, Ms Rennie seeks to adduce a letter signed by him dated 5 July 2021 with a notation that his signature was witnessed on 6 July 2021. Mr Ranchhod is a property manager at L J Hooker. The letter addressed “To Whom it may Concern” refers to the tenancy agreement for the Epsom property (which was entered in January 2014, seven and a half years before). The letter’s heading states the tenants were Ms Rennie and Mr Baker. Mr Ranchhod states:
The tenant completed the application form on site by talking with her partner on the phone ([Mr Baker]) so that [L J Hooker] had the correct information to go onto the tenancy agreement and do the required checks before accepting both [of] them.
[49] Mr Ranchhod states that he spoke to Mr Baker asking him to send through identification and work details. He also states the application form does not ask for references.
[50] This letter is dated before the High Court hearing. Ms Rennie submitted that she was advised that she could not submit this affidavit at the High Court hearing; that it was out of time. Again, however, there is no evidence about that advice, nor why it was incorrect. In the absence of such evidence, I consider the letter could with reasonable diligence have been produced in the High Court. Alternatively, unless the letter could not with reasonable diligence have been obtained earlier and produced in the Family Court, such advice would have been correct. Ms Rennie submitted that when she initially contacted Mr Ranchhod to provide an affidavit, he refused saying he did not wish to participate in Court proceedings, and accordingly she could not provide his affidavit at the Family Court hearing. However, that differs from her evidence in the Family Court where she indicated that she could not get his details. In the absence of a satisfactory explanation, I consider the further evidence could with reasonable diligence have been produced in the Family Court. It is not fresh evidence.
[51] Further, Ms Rennie submitted this evidence is relevant to the issue of common residence, and that I placed too much emphasis on this factor even though there are many cases before the Courts where the parties were found to be in a qualifying de facto relationship even though they had separate residences. That submission stands separately from a further factual challenge to whether Mr Baker was a co-tenant with Ms Rennie at the Epsom property. Even if he was, I do not consider the further evidence of Mr Ranchhod is particularly cogent in relation to the issues in dispute. It is unnecessary to consider the separate correspondence with Mr Ranchhod referred to in Mr Baker’s affidavit.
Conclusion
[52] For these reasons, I do not consider that the proposed further evidence is fresh. Nor is it particularly cogent in relation to the issues in dispute. I consider it should not be admitted.
[53] Ms Rennie’s submissions in support of her application to adduce further evidence raise a number of other factual matters that she submits were not considered by the Family Court Judge or on appeal.13 These instead fall to be addressed in relation to leave to appeal.
Leave to appeal
[54] The grounds of appeal are that the Family Court and High Court erred in deciding that:
(a)the parties were not in a de facto relationship for more than three years; and
(b)Ms Rennie did not make a significant financial contribution and an order under s 14A of the PRA was not justified as there was no serious injustice.
[55] Essentially, Ms Rennie submits that both Courts erred by failing to consider her evidence, including the correspondence between the parties, or giving it very little weight and preferring Mr Baker’s evidence.
[56] In relation to the first issue of a qualifying de facto relationship, Ms Rennie’s submissions focus on the factors of common residence, financial interdependence, ownership, use and acquisition of property, public aspects of the relationship and care of children. Ms Rennie’s submissions rely on a number of messages between the parties to attack the factual findings made by the Family Court Judge and upheld on appeal.
13 At 15 and following of Ms Rennie’s submissions.
[57] Given Ms Rennie’s approach, I begin by referring to the focus of the High Court appeal. As my judgment noted when summarising the primary issue and submissions,14 the appeal emphasised the Judge’s overall assessment and the weight given to lack of common residence over the commitment submitted to be evident, which recognised the difficulty inherent in challenging credibility findings. As a result, some of the factual matters now raised to criticise the Family Court’s decision were not pursued in the High Court appeal (including a separate section of the submissions on credibility). It is not appropriate to raise on a second appeal matters not pursued on the first appeal. Some matters were raised in the High Court appeal and are therefore the subject of concurrent findings in the Family Court and High Court. Although Ms Rennie has not always identified the documents relied on, I have sought to identify where they were raised and dealt with in the High Court appeal.
[58] In relation to common residence, Ms Rennie first relies on three unidentified communications that she submitted show that Mr Baker lived with her in Auckland. I cannot identify these communications in Ms Rennie’s chronology for the High Court appeal but, as Mr Roots submitted, the communications between the parties were the subject of extensive cross-examination in the Family Court.
[59] Ms Rennie also refers to bank statements. I do not accept that the Judge had no regard to them or gave them little weight. There are various references to the bank statements in the Family Court judgment. On appeal, it was not suggested the Judge had erred in that regard, nor that the bank statements gave a different picture of the extent to which the parties lived together, and I was not taken to them.
[60] Under the heading inspection reports, Ms Rennie refers to her presence in Raglan to refute an impression that she did not spend much time there. But both judgments acknowledge Ms Rennie’s presence in Raglan. The message at page 448 is dated 14 June 2014 and is consistent with my finding that while the parties saw each other when realistically possible in Epsom and in Raglan, there was no common residence until Ms Rennie moved to Mr Baker’s rental property in Raglan in mid-
14 Rennie v Baker [2021] NZHC 3245 at [50]-[54].
December 2014.15 Ms Rennie’s presence on 4 July 2016 is consistent with the findings about the relationship ending in both judgments.
[61] Ms Rennie also pursues her argument that Mr Baker was a co-tenant of the Epsom property. I agreed with the Judge that he was not.16 The message at page 387 is dated 14 January 2014 and is consistent with Mr Baker looking with Ms Rennie at rental properties rather than indicating he was to be a co-tenant. But, as indicated above, even if he were a co-tenant, I do not consider that is particularly cogent in relation to the issues in dispute. Except when there was common residence in December 2014 - February 2015 and in December 2015 - February 2016, each party had a (rental) property and paid his or her own rent, albeit they saw each other when realistically possible. Despite Mr Baker’s earlier messages about transferring to Auckland, that did not occur. This was referred to in the judgment.17
[62] The undated Gmail message at page 1182 refers to moving from Hoskins (Hillsborough), which likely simply refers to assistance with the move around January 2014 rather than meaning that the parties lived together in Hillsborough. I agreed with the Judge that there was no common residence while Ms Rennie had the rental property in Hillsborough.18
[63] The message dated 23 September 2015 at page 472 was referred to in the judgment.19 During this period Ms Rennie had moved to a rental property in South Head, Kaipara. While the parties visited each other, they were not living together as a couple. The direct debit referred to in the message of 14 April 2015 at page 551 is consistent with that – it was said to be paying back money Ms Rennie spent. The same applies to the message in November 2015 at page 425. As the judgment indicated, communications through this period were a mix of argument and reconciliation.20
15 Rennie v Baker [2021] NZHC 3245 at [55](b).
16 At [55](b).
17 At [23].
18 At [55](b).
19 At [37].
20 At [38].
[64] Finally in relation to common residence, I address the submission that I placed too much emphasis on the common residence factor. That was a criticism of the Family Court Judge and a focus of the appeal. I addressed common residence,21 accepting Mr Zindel’s submission that the lack of a continually shared roof is not determinative, and that common residence is a factor not a pre-requisite. I accepted that couples may cohabit where one party has to spend long periods away from home. I accepted that parenting obligations may have impacted to some extent on the amount of time the parties spent under the same roof, at least in the period before late 2014. But common residence means more than spending nights under the same roof. I went on to agree with the Judge that there was no common residence in the periods before Ms Rennie moved to Mr Baker’s rental property in Raglan in mid-December 2014.
[65] After considering other matters, I concluded that the combination of common residence and mutual commitment to a shared life was sufficient, at times, to conclude that the parties lived together as a couple. But it was also clear that even those factors were not present throughout the relationship. I said that, in determining when the parties lived together as a couple, I did not consider the Judge overly focused on common residence,22 and I concluded that the parties only lived together as a couple for two short periods from October/November 2014 to February 2015 and from December 2015 to February 2016.
[66] In relation to financial interdependence, Ms Rennie refers to an undated message recording the parties’ argument about “bludging”. It does not indicate financial interdependence. The judgment did consider the funds from Ms Rennie’s relationship property settlement (following repayment by her brother).23 More generally, the judgment concluded that, with limited exceptions, each party supported his/her household and children.24 Paying for food and the like when the other party stayed over does not demonstrate financial interdependence. The undated message referred to on pages 8-9 of Ms Rennie’s submissions is an example of the
21 Rennie v Baker [2021] NZHC 3245 at [55](b).
22 At [57].
23 At [35], [55](e), [65]-[67] and [70].
24 At [55](d).
aspirational messages about a shared life referred to in the judgment, which were countered by other statements indicating the difficulties in the relationship.25
[67] In relation to ownership, use and acquisition of property, Ms Rennie again says that messages from Mr Baker to her were disregarded or given minimal weight. All but one of these were specifically quoted in the judgment,26 These all occurred after the purchase of [withheld], and were also mentioned in the context of whether that property was acquired in contemplation of the de facto relationship and for the common use or common benefit of both parties.27
[68]Public aspects of the relationship were acknowledged in the judgment.28
[69] Care of children was addressed in the judgment.29 Mr Baker’s message about becoming a better father is consistent with the finding.
[70] In relation to relationships of short duration and serious injustice, the unidentified messages on p 11 of Ms Rennie’s submissions are different messages ranging from at least April 2014 to November 2015. Some have already been addressed above. These messages reflect various arguments about the relationship. The judgment found that neither party made a substantial contribution during the short periods of de facto relationship.30 Serious injustice needed to be dealt with in the context of those two very short periods.31
[71] Finally, Ms Rennie’s submissions raise issues that certain messages were never sent; that Mr Baker had hacked her computer; and concerning digital harm. Those issues were not pursued in the High Court appeal. It is not appropriate to raise them on a second appeal.
25 Rennie v Baker [2021] NZHC 3245 at [55](f).
26 At [33]-[38].
27 At [80].
28 At [10] and [55](h).
29 At [[55](g).
30 At [67].
31 At [68]-[71].
[72] Having addressed each of the alleged errors, all of which are essentially factual, I do not consider they are capable of bona fide and serious argument. Moreover, even if there were any bona fide and serious argument, the above analysis confirms that any such argument is limited to the facts of this case and does not involve some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. I do not consider that a second appeal is justified.
Result
[73]Ms Rennie’s applications for leave are dismissed.
[74]Costs are reserved in the event that legal aid does not apply.
Gault J