Bailey v Rerekura [2019] NZFC 8996

Published 01 March 2021

Relationship property division — whether property is family home — post separation adjustments — rental income — rate arrears — tikanga Māori — tino rangatiratanga —Property Law Act 2007, ss 6, 119 & 122 — Property (Relationships) Act 1976, ss 33 & 42 — Local Government (Rating) Act 2002 — Treaty of Waitangi 1840 — Te Ture Whenua Māori Act 1993. The parties were in a de facto relationship from 2005, when the applicant moved into the respondent's home, until their separation in 2016. They appeared in Court as they had been unable to resolve their relationship property dispute. The Judge ordered that each party would keep the chattels and relationship property in their possession at the time of the hearing (there was only a $12.50 difference in their positions). The main issue was whether the property where the parties lived together was classified as a family home and was therefore relationship property. If the property was deemed relationship property the applicant would be entitled to a half share. The respondent argued that the Court had no jurisdiction to deal with the property and that he was exercising his tino rangatiratanga. He argued if the Court became involved it would be a breach of the Treaty of Waitangi. Section 6 of the Property (Relationships) Act (the PRA) prevents anything in the Act from applying to any Māori land within the meaning of Te Ture Whenua Māori Act 1993. However, the property in question was general land not Māori land, as identified by its certificate of title. Further, the Waitangi Tribunal has identified the land as general land. This argued was rejected by the Court. The Court was satisfied that the property was the family home. The applicant had resided there for 11 years and during this time made payments towards rates and the mortgage. Each party was to receive a half share of the property once it was sold (a mortgagee sale was imminent as the respondent had failed to keep up payments). Judgment Date: 6 November 2019.