Sadchykova v Vaughan - [2023] NZHC 1214

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
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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV2023-488-000012

[2023] NZHC 1214

IN THE MATTER OF the Relationship (Property) Act 1976

BETWEEN

IRYNA OLEKSANDRIVNA SADCHYKOVA

Appellant

AND

STEPHEN FREDERICK VAUGHAN

Respondent

Hearing: 17 May 2023

Appearances:

The appellant in Person

D W Hart for the Respondent

Judgment:

9 June 2023

JUDGMENT OF POWELL J

IRYNA OLEKSANDRIVNA SADCHYKOVA v STEPHEN FREDERICK VAUGHAN [2023] NZHC 1214 [9
June 2023]

Solicitors:
I O Sadchykova – Self Represented DW Hart - Whangarei

[1] The appellant, Iryna Sadchykova, has appealed against a decision of Judge Ellis ordering the sale of the former family home owned by her and the respondent, Stephen Vaughan, located in Anzac Ave, Morningside, Whangārei (“the Morningside property”).1

[2] The order to sell the Morningside property was made pursuant to s 25(4) of the Property (Relationships) Act 1976 (“the PRA”). Section 25 of the PRA gives the Court jurisdiction to determine the respective shares of spouses or partners in relationship property including family homes, and to divide that property up between the spouse or partner,2 subject to being satisfied of various matters in s 25(2). It is not in dispute that at the time Judge Ellis made the orders under appeal there were no substantive proceedings seeking such a determination or division of the parties’ relationship property but s 25 subss (3) and (4) relevantly provide:

(3) Regardless of subsection (2), the court may at any time make any order or declaration relating to the status, ownership, vesting, or possession of any specific property as it considers just.

(4) To avoid any doubt, but without limiting subsection (3), if proceedings under this Act are pending, the court, if it considers it appropriate in the circumstances, may make an interim order under that subsection for the sale of any relationship property, and may give any directions it thinks fit with respect to the proceeds.

[3] In her Notice of Appeal Ms Sadchykova challenges three aspects of Judge Ellis’s decision:

(a)There were procedural irregularities with regard to the Family Court hearing;

(b)Judge Ellis was wrong to conclude that as at the date of hearing there were proceedings pending under the PRA and as a result there was no jurisdiction to make the order for sale; and

(c)Judge Ellis was wrong to conclude on the evidence before her Honour that it was appropriate to make the orders sought by Mr Vaughan.

1 Vaughan v Sadchykova [2023] NZFC 1278.
2 Property (Relationships) Act 1976 s 25(1).

[4] Ms Sadchykova’s focus at the hearing before me was an aspect of this third issue. In her oral submissions Ms Sadchykova asserted that the decision to sell the house was premature and needed to wait until after Mr Vaughan had completed disclosure. In…

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 Sadchykova v Vaughan

Details

AGLC: Sadchykova v Vaughan [2023] NZHC 1214
Case: [2023] NZHC 1214
Decision Date: 9 June 2023

CaseChat Overview and Summary

Iryna Oleksandirovna Sadchykova has appealed against a decision of Judge Ellis ordering the sale of the former family home she shared with Stephen Frederick Vaughan, located in Anzac Ave, Morningside, Whangārei. The appeal raises issues concerning the procedural fairness of the Family Court hearing, the applicability of section 25(4) of the Property (Relationships) Act 1976, and the appropriateness of the order for sale under the same section. The appeal was heard by Powell J, who found that the decision to sell the house was not purely discretionary but involved an assessment of the evidence, and thus proceeded to consider the appeal on the basis of the general appeal approach.

On the issue of procedural irregularities, Powell J found that there were no irregularities. The application for sale had followed a lengthy process of negotiation between the parties. The hearing was scheduled as a one-hour submissions-only hearing, and there was no evidence that Ms Sadchykova was cut short or did not have sufficient time to present her submissions.

Regarding the issue of whether substantive proceedings were pending for the purposes of section 25(4), Powell J endorsed Judge Ellis's approach that the word "pending" could include proceedings yet to be filed, provided there was a realistic possibility of actual proceedings being filed. Powell J found that the anticipated substantive proceedings were pending for the purposes of section 25(4), and Judge Ellis had appropriately issued directions for such proceedings to be filed within 28 days.

On the issue of the appropriateness of the order for sale, Powell J found that it was difficult to fault Judge Ellis's approach. The evidence before the Court showed that the parties had been unable to agree on what should happen to the Morningside property for a considerable period, and the value of the property had been decreasing. Powell J found that it was in both parties' advantage for the sale to take place as soon as possible, and that such a sale would not affect the relative interests of the parties, which would be determined in the course of the substantive proceedings that had now been filed.

Decision: The appeal is dismissed, and Mr Vaughan is entitled to costs. Any memorandum on behalf of Mr Vaughan is to be filed by 23 June 2023 and any response by Ms Sadchykova by 7 July 2023, following which Powell J will determine costs on the papers.

Orders