Byakova v Cherry [2020] NZFC 7121

Published 21 September 2020

Relationship property division — relationship of short duration — exception to equal sharing — extraordinary circumstances — relationship property — proceeds of sale — family chattels — post-separation contributions — Property (Relationships) Act 1976, ss 1N, 2E, 10, 13, 18 & 44 — Martin v Martin [1979] 1 NZLR 97 (CA) — RSQ v BQ [2012] NZFC 7272 — Kit Powers v Eve Powers [2016] NZFC 4413 — de Malmanche v de Malmanche [2002] 2 NZLR 838 (HC) — Venter v Trenberth [2015] NZHC 545 — B v B [2009] 28 FRNZ 28 — Joseph v Johansen [1993] 10 FRNZ 302 (CA) — Brown v Starke [2016] NZFC 7132 — Castle v Castle [1977] 2 NZLR 97 (SC) — Beven v Beven (1977) 1 MPC 23 (SC) — D v D [1997] NZFLR 424 (FC) — Park v Park [1980] 2 NZLR 278 (CA) — BLA v PL FC Kaitaia FAM-2008-029-54, 11 June 2009 — Piper v Piper (1978) 1 MPC 164 (SC) — A v A FC Hamilton FAM-2003-019-588, 29 March 2007 — Vann v Fay [2016] NZFC 1676 — Herbison v Waugh [2018] NZHC 3101. This was a reserved judgment relating to the division of the parties' relationship property. The Judge had found in an earlier judgment that there was a qualifying relationship and that there had been dispositions meaning s 44(1) of the Property (Relationships) Act (PRA) was triggered but that there were sufficient funds elsewhere meaning an order under s 44(2) was unnecessary. The parties were unable to resolve the matter, so after counsel filed further submissions, this decision was delivered. The issues for determination were whether PRA, s 2E (relationships of short duration) applied; whether PRA, s 13 applied (exception to equal sharing); the property to be divided; and whether any post-separation contribution adjustments should be made. The parties had met online and the applicant had moved from Russia with her then-teenage daughter to be with the respondent. She had sold her Russian property and put that money towards traveling back and forth between Russia and New Zealand and towards cars for herself. The parties lived together in a home purchased by the respondent, during which time he renovated the property, until separation. He gifted the property solely to himself and his daughter and subsequently sold the property, putting the proceeds of sale towards a second house which he also spent a considerable time renovating. The respondent argued that the relationship was one of short duration or that equal sharing was repugnant to justice. The Judge considered case law on the issue, and determined that the nature of the relationship meant there was ongoing commitment between the parties for the duration which far exceeded the types of relationship contemplated by s 2E. The test under s 13 for the exception to equal sharing was "extraordinary circumstances", which was a high threshold to meet but not an impossible one to attain. Having consideration to the principles under s 1N of the PRA and relevant case law, the Judge did not consider that the parties' circumstances were extraordinary and found against the respondent on this matter. With regards to the property to be divided equally, the Judge considered that the net sale proceeds of the first property and the parties' bank accounts were relationship property, as well as family chattels of both parties' motor vehicles and the respondent's tools. The Judge made a post-separation contribution adjustment of $50,000 in favour of the respondent for the work he had done to the first property. The second property was deemed to be his separate property. After adjustments for amounts already paid were made, the final amount that the respondent had to pay was $30,628. Costs were reserved. Judgment Date: 21 August 2020.