TN v AK

Case [2019] NZHC 2466 30 September 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1944

[2019] NZHC 2466

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of an appeal

BETWEEN

TN

First Appellant

KHN
Second Appellant

CYK
Third Appellant

AND

AK

Respondent

Hearing: 2 May 2019; further submissions 8 May 2019

Counsel:

D Zhang for appellants

NA Farrands for respondent

Judgment:

30 September 2019

Reissued:

3 October 2019 (anonymised version)

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 30 September 2019 at 3:45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar …………………………… Date…………………………………

Solicitors: Amicus Law, Auckland (R Zhao)
Morrison Kent Auckland

TN v AK [2019] NZHC 2466 [30 September 2019]

CONTENTS

Introduction [1]

Facts – overview [4]

Family Court Judgment  [17]
Finding the Property was relationship property  [21]
Findings in relation to other relationship property  [23]
Division of relationship property  [25]

Admissibility judgment [30]

Submissions
Submissions for TN [35]
Submissions for AK [45]

Approach on appeal [54]

Did the Judge err in her credibility findings? [59]

Is the Property held on trust for the Ns?
Introduction and legal principles [64]
Resulting trust - discussion [70]

Did the relationship end with AK’s affair?

Legal principles [93]
Discussion [95]

Has the $24,000 brought by AK to New Zealand retained its character

as her separate property? [99]

What is a fair division under s 14A?
Legal principles  [104]
The Judge’s approach  [106]
Discussion  [107]

The resulting division of relationship property

The relationship property pool and its division  [115]
Adjustments to reflect post-separation position  [117]
Occupation rent and interest  [122]

Result and next steps [127]

Costs [131]

Introduction

[1] The appellants appeal from a decision of the Family Court.1 The Family Court Judge found that the first appellant (TN) and the respondent (AK) had been in a short term de facto relationship. She made orders dividing relationship property in accordance with her assessment of the contribution of each de facto partner to the relationship. The most valuable asset in the relationship property pool (by a significant margin) was a residential property (the Property) held jointly by TN and AK.

[2] The second and third appellants (TN’s parents, who I will refer to collectively as the Ns) had been joined to the Family Court proceedings as they claimed an interest in the Property. There is no dispute the Ns advanced $335,000 to TN to put towards the purchase of the Property. The Ns (and TN) said it was always intended the Ns would have an interest in the Property as a result.2 AK says she was not a party to or aware of any such intention or expectation; her position is that the $335,000 was a gift to TN to assist the young couple into their first home. The Judge held that the Ns had advanced the funds to TN by way of a gift and they therefore did not have any beneficial interest in the Property. This finding was largely based…

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 TN v AK

Details

AGLC: TN v AK [2019] NZHC 2466
Case: [2019] NZHC 2466
Decision Date: 30 September 2019

CaseChat Overview and Summary

TN and KHN appeal from a decision of the Family Court in relation to the division of relationship property between TN and AK. The primary issue on appeal was whether the Family Court Judge erred in finding that the Ns did not have a beneficial interest in the property held jointly by TN and AK. The Ns had advanced $335,000 towards the purchase of the property, and claimed an interest in it. The Family Court Judge had rejected this claim, finding the Ns had gifted the funds to TN. The appeal was also concerned with the division of relationship property between TN and AK, and the post-separation occupation rent awarded to AK. The High Court found in favour of the Ns on the question of their beneficial interest in the property, concluding that they held a 35.8 per cent interest in it. The High Court found that the Family Court Judge’s approach to the division of relationship property was flawed, and substituted a 60/40 per cent division in favour of AK. The appeal was dismissed in all other respects. The Family Court is to reconsider the costs of that Court in light of the findings in this judgment. The parties are to attempt to agree on the costs of the appeal.

Orders