Vaifo'ou v Vaifo'ou - [2023] NZHC 3092

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://

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1700

[2023] NZHC 3092

BETWEEN
EVALINGI VAIFO’OU

Appellant

AND

SIAOSI VEUKI TAU VAIFO’OU

Respondent

Hearing: 1 November 2023

Appearances:

S T Fonua for Appellant D Kumar for Respondent

Judgment:

2 November 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 2 November 2023 at 3:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors / Counsel:
Sione T Fonua, Auckland
Gibbs Mills Livingstone (S Khalesi), Auckland D Kumar, Auckland

VAIFO’OU v VAIFO’OU [2023] NZHC 3092 [2 November 2023]

[1] Evalingi Vaifo’ou (the appellant) appeals against the decision of Judge A G Mahon in the Family Court at Manukau, dated 17 July 2023, in which he fixed the net value of the family home, ordered its sale and granted the respondent’s application for occupation rent.1

Factual background

[2]The following facts are largely taken from the Family Court decision.

[3] The parties married on 12 August 1982. They separated in December 2008. There were no children of the marriage, but each party has adult children from previous marriages. The marriage was dissolved on 31 July 2020.

[4] The respondent filed proceedings seeking an order for the sale of the family home under the Property (Relationships) Act 1976 (the Act) on 22 December 2021.

[5]The parties’ relationship property on separation was:

(a)The family home at 68 Boundary Road, Clover Park, which was subject to a mortgage with ASB Bank Limited;

(b)Family chattels;

(c)The respondent’s Holden Commodore motor vehicle; and

(d)Bank accounts.

[6] The family home was purchased in the parties’ joint names in about 1988. The respondent was primarily responsible for payment of the mortgage. Both parties contributed to the costs of food.

[7] The respondent left the family home in December 2008 to live with his current partner. He has incurred the cost of rental accommodation since that time. The

1 Vaifo’ou v Vaifo’ou [2023] NZFC 7448.

respondent and his partner currently pay rent of $260 weekly. In 2013 the respondent had a stroke. His only income since that time has been the Supported Living Payment.2

[8] In the period since separation, the appellant has had family members and boarders staying in the property. The costs recovered from these parties have been minimal. Most have only stayed in the property for a short time. The appellant is also reliant on a benefit.

Family Court judgment

[9] After reciting the factual background, the Judge noted a dispute in the evidence about whether the respondent told the appellant of his wish to sell the family home. He found as a matter of fact that the respondent did advise the appellant that he wanted to receive his share in the family home…

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.

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Details

Case: [2023] NZHC 3092
Decision Date: 2 November 2023

CaseChat Overview and Summary

The appeal before the High Court of New Zealand, Auckland Registry, was filed by Evalingi Vaifo'ou against the Family Court decision rendered by Judge A G Mahon on 17 July 2023. The appeal concerns the net valuation of the family home, the sale order, and the application for occupation rent. The factual background indicates that the parties married in 1982 and separated in 2008, with no children from their marriage but with adult children from previous relationships. The respondent filed proceedings seeking the sale of the family home under the Property (Relationships) Act 1976. The family home was purchased in 1988, and the respondent was primarily responsible for the mortgage payments. The appellant has had family members and boarders staying in the property since the separation, and the respondent has incurred the cost of rental accommodation since leaving the family home. The legal issues in this case were whether the Judge correctly applied the Act in determining the share and valuation of the family home and whether the Judge was correct in granting the respondent’s application for occupation rent. The court found that s 2F of the Act does not change the approach to the division of relationship property as argued by counsel for the appellant. The reference to "the share of a spouse or partner in the relationship property" does not mean the value of a spouse or partner's entitlement, but rather the proportion of the total share that is their entitlement. The family home has been valued at $650,000, and each party’s share is $305,557. The court also found that the Judge fell into error when granting the respondent’s application for compensation under s 18B. The outgoings paid by the appellant on the family home and the cost to the respondent of living away from the family home more or less balance each other out. The appeal is allowed to the extent that order [63](c) directing that the sum of $100,000 be deducted from the appellant’s net share of the proceeds of sale of the family home under s 18B of the Act is quashed. The judgment of Judge A G Mahon dated 17 July 2023 is otherwise confirmed.

Orders