Jar v Amr Fc Oam

• Jurisdiction: New Zealand
• Judge: MNE O'Dwyer
• Judgment Date: 17 February 2010
• Court: Family Court
• Docket Number: FAM-2010-045-000011
• Date: 17 February 2010

IN THE FAMILY COURT AT OAMARU

FAM-2010-045-000011

Under Property (Relationships) Act 1976

BETWEEN

Jennifer A Rangi

Applicant

and

Anthony M Rangi

Respondent

Appearances:

P Hope For The Applicant

R Lamb for the Respondent

RESERVED JUDGMENT OF JUDGE MNE O'Dwyer

As to Application for Occupation Order

Introduction

1 The proceedings before the Court concern an application for an occupation order under the Property (Relationships) Act 1976. The applicant, Jennifer Rangi, has applied (originally without notice) for an occupation order in relation to the property at 58 Till Street, Oamaru. The respondent, Anthony Rangi, opposes the application and seeks to return to live in the property himself.

2 The parties were married on 16 October 2004 and since then have lived in the property at 58 Till Street, Oamaru until 19 January 2010, with the property being their family home. There are no children of the marriage.

3 There is a dispute in the evidence over one or two days. However, it is common ground that the applicant, Ms Rangi, has continued to occupy the family home since 19 January 2010, for most of that time to the exclusion of the respondent Mr Rangi who has lived with his mother, who resides in Oamaru.

4 The application for an occupation order was made in response to the issuing of a trespass notice against the applicant by Banco Trustees Limited (the trustee), the registered proprietor of the property at 58 Till Street, Oamaru in its capacity as trustee of the Tony Rangi Trust (the trust).

5 The trustee warned the applicant to stay off the property from 4.00 pm Wednesday 27 January 2010. Following a judicial conference on 27 January 2010 the trustee gave an undertaking extending the time to 4.00 pm Wednesday 10 February 2010 following the date of hearing of the application.

The hearing

6 The hearing has been by way of affidavit and submissions only. Ms Rangi, the applicant, has filed two affidavits. The respondent, Mr Rangi, has filed an affidavit himself and an affidavit of his mother, Susan Rangi, who is the settler of the trust. I am grateful to both counsel, Mr Hope and Ms Lamb, for their written and oral submissions which have been helpful.

The applicant's case

7 The applicant seeks an occupation order for a period of two months and submits that would allow a reasonable period of time for the parties to sensibly address the division of relationship property. Ms Rangi accepts that the respondent has significant health issues including intellectual and physical disabilities, complicated at present by knee surgery which he is receiving today. The applicant argues that suitable alternative accommodation is available to Mr Rangi at his mother's home in Oamaru where he can receive care.

The respondent's case

1 Mr Rangi wishes to return to the property following surgery. Ms Lamb submits that the respondent has much greater need to return to the home than the applicant. Ms Lamb emphasises that the trust was set up in 1995 to ensure that Mr Rangi was taken care of and had a home to live in independently. He lived in the property for 8 years before the relationship with the applicant began and the house was fitted with a purpose built bathroom to meet his disability needs. Ms Lamb submits that it is important for his health and rehabilitation following surgery that he is able to return to the home.

Jurisdiction

2 Whilst she has now accepted on behalf of the respondent that the Court has jurisdiction to hear this application for an occupation order, it is important to set out the basis upon which the Court can exercise that jurisdiction. Section 27(1) of the Property (Relationships) Act 1976 (“the Act”) provides:

27 Occupation orders

• (1) The Court may make an order granting to [either spouse or [[partner]] ], for such period or periods and on such terms and subject to such conditions as the Court thinks fit, the right personally to occupy the [family] home or any other premises forming part of the [relationship] property.

3 Therefore, the Court's jurisdiction arises when the application is to occupy the family home or any other premises forming part of the relationship property. It is accepted that the family home has to form part of the relationship property of the parties for s 27(1) to apply.

4 “Property” is defined in s 2 of the Act as follows:

property includes –

• a) Real property

• b) Personal property

• c) Any estate or interest in any real property or personal property

• d) Any debt or anything in action

• e) Any other right or interest.

5 Furthermore, the “owner” is defined as:

Owner, in respect of any property, means the person who, apart from this Act, is the beneficial owner of the property under any enactment or rule of common law or equity.

6 The respondent, Mr Rangi, is the beneficiary of the Tony Rangi Trust which owns the property. The evidence established that the Tony Rangi Trust was set up by Mr Rangi's mother, Susan Rangi in 1995 at the time of the house purchase. It seems that the purchase of the property was completed through funds supplied by the settler and from a compensation payment made following the accidental death of the respondent's father in Australia.

7 It appears clear that the trust is not discretionary. The trust deed establishes the trust of which the respondent is the beneficiary. The trust was created for the benefit of the respondent with the trust fund to be held from the date of execution of the deed (1995) until the death of the beneficiary (“the date of distribution”). Final distribution occurs after the death of the respondent and payment of his funeral expenses. Any funds remaining in the trust are then held for two other named beneficiaries in equal shares if they survive. Clauses 1. 1 and 1.8 of the trust deed establish the beneficial interest owned by the respondent created by the deed:

• “1.1 Creation of trust. The Trustee shall, from the date of execution of this deed until the death of the Beneficiary (“the Date of Distribution)…

• 1.8 Distribution of trust funds. From the Date of Distribution the Trustee shall hold the Trust Fund or so much of it as then remains upon the following further trusts, namely:

  • (a) upon trust to meet the funeral and burial expenses of the Beneficiary including the costs of a suitable headstone to his memory and

  • (b) upon trust for LOUWANA MARIE RANGI and JASON GARY RANGI or the survivor of them, and if both survive the Beneficiary in equal shares.”

8 Ms Lamb submits that the trust deed created a beneficial interest in the property for the respondent akin to that of a life interest. That would be sufficient to come within the definition of property in s 2 of the Act.

9 However, additionally, the respondent has a beneficial interest in...