Tab v Gjh Fc Chch
| Jurisdiction | New Zealand |
| Judge | E Smith |
| Judgment Date | 21 January 2011 |
| Court | Family Court |
| Docket Number | FAM-2008-009-003631 |
| Date | 21 January 2011 |
FAM-2008-009-003631
IN THE FAMILY COURT AT CHRISTCHURCH
Application for orders settling outstanding issues between parties as to division of relationship property — consideration of whether property sharing agreement ought to be set aside on ground(s) of duress, undue influence and/or unconscionable bargain — consideration of whether compensation payable to applicant for respondent's use of relationship property post-separation — whether valuation of relationship home for purpose of division should be taken at the default date of hearing.
P C Maciaszek for Applicant
D H Dawson for Respondent
RESERVED JUDGMENT OF JUDGE E Smith
The parties were in a relationship between 1990 until December 2007 (reaching “de facto” status likely in August 1992). The parties have been unable to completely reach resolution of the division of their relationship property pursuant to The Property (Relationships) Act 1976 (“the Act”) as a result of that separation.
The parties have reached resolution regarding most matters. Six discreet matters have not been agreed, for which the parties seek the Court's determination. The contested issues are, namely:
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2.1 Whether a property sharing agreement executed between them on 21 January 1997 is valid and enforceable;
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2.2 Should the amount of a relationship debt owed to the estate of the respondent's father be fixed at either $48,570.97 or $45,000;
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2.3 What ought to be the date at which the relationship home should be valued for the purpose of division, i.e. the date of hearing or at some time prior?
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2.4 The valuations to be ascribed to some miscellaneous items, namely:
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(i) a Hilux Surf;
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(ii) items of plant and machinery of respondent's business;
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(iii) items of personal farm plant;
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2.5 What, if any, ought to be the compensation paid to the applicant by the respondent for delayed settlement, be that by way of interest and/or occupational rental or other?
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2.6 Ought inter-party costs to be awarded?
Once determinations regarding the above are known, the parties agree all calculations for the division of relationship property can then be settled between them in accordance with prior agreements and the Court is invited to issue one comprehensive order incorporating its findings to those contested matters at paragraph [2] hereof together with the agreements reached on all other issues.
It is disputed when exactly the parties met, but likely it was in or about 1990. Initially, the Applicant sought this date to be set as the beginning of their de facto relationship, but during the fixture confirmation from WINZ came to hand suggesting the applicant's DPB ceased in August 2002, which better corroborates the respondent's view that they began living together from this date, although they stayed at each other's homes prior to this date from time to time.
Accordingly, I find in August 1992 the applicant, together with her two children A (born in May 1983) and L (born in May 1986) shifted into a home owned by the respondent at I Road, Christchurch (“I Road property”). At the beginning of the parties then de facto relationship the applicant brought with her a Mini, furniture, savings of $3000 which were used to purchase a Mitsubishi in substitution of the Mini.
The I Road property was registered in the sole name of the respondent, he having purchased it in May 1989 for $135,000. The purchase price was settled by monies advanced to him from his mother, an inheritance from a great uncle, and from savings he had accumulated from wages over the years. As at 1992 the respondent worked for wages as a mechanic and the applicant cared for A and L full time but gained part time work at some stage after 1992.
After some discussion as to location, and both parties thinking a change of address advantageous particularly to be more proximate to work and the children's schools, the I Road property was sold and the respondent purchased a new property at A Place (“A Place”) on 15 October 1993, thereafter the parties and the applicant's children began to reside there. A Place was registered in the respondent's sole name and the purchase price of $205,000 was made up of the net proceeds of sale of I Road (approximately $163,000) and the balance by way of mortgage advance to the respondent.
The parties lived at A Place until in or about March 1996. During their occupation of that property the respondent realised his long-term plan (aspirations he had prior to the beginning of the de facto relationship) to begin a business as a sole trader mechanic and he purchased a business to this effect. The applicant continued to care for her children and obtained a number of part-time jobs. Each party contributed to the care of the children and the running of the home. The respondent's net income was applied largely to the mortgage, rates, insurance and utilities and the balance to provision and sustenance of the family unit and the applicant's income largely went to groceries and other household items.
To better enhance the business and enjoy lifestyle block living, the parties considered the option of shifting to West Melton but, as a holding position, purchased a property at SR Avenue (“Fern Drive”) in April 1996.
To enable the Fern Drive purchase the respondent sold his property at A Place in March 1996 for $236,000. Fern Drive was purchased and registered in the sole name of the respondent in April 1996. No mortgage was required, this purchase being funded entirely from the net proceeds of the sale of A Place (and the respondent's accumulated equity in I Road previously).
The parties subsequently found a property at XXX West Coast Road (“West Melton property”) and its purchase and settlement was effected on or about 30 August 1996. The property was not immediately registered in the parties' names but rather was not registered until 2 December 1996 to both of them as tenants in common in equal shares. Simultaneously at that time was a mortgage to the Southland Building Society was also registered.
The purchase price of the West Melton property of $325,000 (plus GST of $13,125) was made up from the net equity from the sale of Fern Drive (which had a sale price of $137,000), a loan from the respondent's mother to him in the sum of $31,000, an advance from the Southland Building Society of $162,000, and the balance likely made up of a capital sum from the respondent's earnings.
At the time the parties purchased the West Melton property, the applicant was conscious there was no legislation in New Zealand governing property division on separation of a de facto relationship. Her view was that given the parties had been in a relationship for about seven years (four years of which likely de facto) she asked the respondent if they would execute an agreement that would provide some protection for her position given the respondent had wanted the West Melton property to be in his sole name. The applicant says she felt vulnerable, the respondent previously having made it clear that the I Road, A Place and Fern Drive properties were his, she saying “ I was concerned that I would have at least some share of the next property to be purchased”. 1
It is agreed that the suggestion of a property sharing agreement was generated by the applicant although the respondent had no objection, thinking it “fair and square” that he had preserved to him the monies he had accumulated from his own life savings, advances from his family's estates and the equity of his previous properties. He otherwise had no difficulty in sharing the increase in value of the West Melton property. The respondent's legal advisers likely shared the applicant's enthusiasm for a property sharing agreement and if the idea of the agreement was generated by the applicant, the respondent's legal advisers were responsible for the preparation of such an agreement and certainly promoted it to the respondent.
To effect her wish for a property sharing agreement, the applicant visited Mr Stephen van Bohemen (Barrister) on 7 August 1996 (prior to settlement on 30 August 1996) in relation to a draft property sharing agreement that appears to have been drafted by the respondent's solicitors.
The parties eventually each executed the property sharing agreement on 21 January 1997 (“the agreement”), the applicant having received independent advice and signed the agreement in front of Valerie Munro (solicitor) and the respondent
also received advice and executing the agreement in front of John Goodwin (solicitor)Subsequently, on 27 February 1997 the West Melton property was transferred from being a joint tenancy to being registered in the sole name of the respondent and, simultaneously, a mortgage executed in favour of the Southland Building Society.
The parties' relationship was not without difficulty, the applicant claiming the respondent was often abusive to her verbally and she felt herself having to defend her children from the respondent and the applicant claiming the respondent was physically violent to her, particularly in 1997, citing an incident on 14 December 1997 that resulted in her obtaining a without notice temporary protection order. A temporary order was granted by the Christchurch Family Court on 19 December 1997 but was not made final. While the applicant contemplated separating at that time, that did not occur and the parties' relationship continued for another 10 years. In general terms the respondent denies the allegations of temper, volatility, abuse physical or otherwise, save...
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