Sotana v Vongla

[2018] NZHC 1378

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-633

[2018] NZHC 1378

IN THE MATTER OF

The Property (Relationships) Act 1976

BETWEEN

KETMANY SOTANA

Appellant

AND

CHANTHALA VONGLA

Respondent

Hearing:	11 June 2018
Appearances:	L Ord and E Blincoe for the appellant J J Delany for the respondent
Judgment:	12 June 2018

JUDGMENT OF CULL J

[1]                 The parties to this appeal, from a Family Court decision regarding relationship property,1 have filed a joint memorandum of counsel, with an attached draft consent order. They advise the Court that the parties have reached a compromise and request the Court make the agreed consent orders.

[2]                 The memorandum came before the Duty Judge last week, for orders to be made on the papers. The parties were directed to address the issue of the jurisdiction of the High Court to hear appeals from the Family Court without a hearing.

[3]                 This matter was placed in today’s Judge’s list, where counsel for both parties addressed the Court on the background to the appeal and the compromise reached by the parties, as reflected in the draft consent order.

1      Vongla v Sotana [2017] NZFC 5473.

SOTANA v VONGLA [2018] NZHC 1378 [12 June 2018]

The parties’ respective positions

[4]                 Mr Delany, for the respondent, addressed the Court at the outset, indicating both his and his client’s consent to the matters that were to be raised on behalf of the appellant. He made his position clear to the Court that there was no impediment on his client’s part to the draft consent orders being made. He urged the Court to do so, because of the complications in having the parties attend and negotiate an agreement under s 21 of the Property (Relationships) Act 1976 in these circumstances. This was going to cause not only further complication and potential re-litigation, but also further cost.

[5]                 Ms Ord, for the appellant, addressed the issues that had been resolved by the parties, subsequent to the Family Court’s decision of 7 July 2017.2 The principal issue concerned a compensatory payment awarded by the Family Court to the respondent of $11,200, being a compensatory payment for occupational rental.

[6]                 Ms Ord carefully canvassed the reason why occupational rental should not have been awarded in these circumstances, as the appellant was not living in the property, yet was paying the disbursements, prior to its sale. There was no detriment to the respondent and indeed, by keeping the property for sale, both parties received substantial benefit, from the increase in Wellington property values at the time.

[7]                 Ms Ord had filed substantial submissions in preparation for the appeal hearing and referred the Court to her legal submissions and the analysis of facts at the relevant paragraphs of her submissions.

[8]                 After dealing with the other more minor issues, which also varied the Family Court’s orders, Ms Ord explained to the Court that a court order was required by the ANZ Bank, to enable the release of the appellant’s Kiwisaver savings, so that the appellant could pay the respondent the amounts agreed between the parties.

[9]                 After Ms Ord completed her submissions, Mr Delany referred the Court to the extensive submissions that had been made on the respondent’s behalf and also referred to the paragraphs of those submissions in which the issues at the heart of the parties’ compromise had been fully aired. He urged the Court also to make the orders.

2      Vongla, above n 1.

Decision

[10]              The High Court has jurisdiction to hear appeals from the Family Court under s 39 of the Property (Relationships) Act.3 Under r 20.19 of the High Court Rules 2016, after hearing an appeal this Court has the power to make any order it thinks just.

[11]              A hearing can take several forms. In this case, I heard Counsel in Chambers to satisfy myself that the consent orders affecting relationship property matters between the parties were just and fair.

[12]              I was left in no doubt that it is in the interests of justice that these orders should be made, as it was an effective and efficient means of finalising the outstanding property issues as agreed between the parties and resolved the issues on appeal.

[13]I therefore make the following orders by consent:

(a)Pursuant to section 31 of the Property (Relationships) Act, $13,184.75 of the appellant’s Kiwisaver entitlement, account number 935165 with the ANZ bank Kiwisaver Scheme, is to be released by the Kiwisaver provider, the ANZ bank, and paid to the respondent’s nominated bank account.

(b)Upon payment of the sum in clause (a) of this Order, the net sale proceeds of the sale of the property at 22 Japonica Crescent, Porirua are to be divided equally between the appellant and the respondent, subject to payment of any legal fees of Gault Bevan Law.

(c)From the appellant’s half share she shall pay the respondent the following amounts:

(i)the sum of $6,589.30 pursuant to the Order for costs made by Judge Grace on 6 January 2017 in the Family Court;

3      Under s 39(3) of the Property (Relationships) Act 1976, the High Court Rules 2016 apply to all appeals under that section.

(ii)the sum of $6,497 pursuant to the Order for costs made by Judge Grace on 7 July 2017 in the Family Court; and

(iii)the sum of $2,441.50 pursuant to the Order for costs made by Williams J on 20 November 2017 in the High Court.4

(d)From the respondent’s half share he shall pay the appellant the following amounts:

(i)the sum of $2,185.32 being one half of the credit card debt, pursuant to [6] of the oral judgment of Judge Grace of 7 July 2017;5

(ii)the sums of $694.89 and $325 on account of post-separation withdrawals, pursuant to [7] of the oral judgment of Judge Grace;

(iii)the sum of $1,401.50 on account of child support arrears, pursuant to [12] of the oral judgment of Judge Grace; and

(iv)the sum of $27,732.44 on account of post-separation payments made by the respondent for the property at 22 Japonica Crescent, Porirua City, pursuant to [23] of the oral judgment of Judge Grace.

(e)The appellant abandons her appeal dated 3 August 2017.

(f)No costs, other than those referred to in clauses (c)(i)–(iii) above, are payable from either party to the other for the appeal dated 3 August 2017.

Cull J

4      Sotana v Vongla [2017] NZHC 2870.

5      Vongla, above n 1.