O'Neill v Murdock [2019] NZFC 9708

Published 30 October 2020

De facto relationship — date of qualifying relationship — relationship property — application out of time — Property (Relationships) Act 1976, ss 2D, 4C, 24 & 42, — Benseman v Ball [2007] NZFLR 127, (2006) 25 FRNZ 803 (HC) — Miller v Carey [2015] NZHC 887, (2015) 30 FRNZ 675 — Scragg v Scott [2006] NZFLR 1076, (2006) 25 FRNZ 942 (HC) — Ritchie v Ritchie (1991) 8 FRNZ 197, [1992] NZFLR 266 (HC) — Beuker v Beuker [1977] 1 MPC 20 (SC) — Nowacki v Spyve (1988) 4 FRNZ 421, (1989) 5 NZFLR 321 (HC). This was an application to bring a claim out of time for the division of relationship property. The Court had to first establish whether there was a qualifying relationship under the Property (Relationships) Act 1976 (PRA). The applicant and respondent had been in a de facto relationship (DFR) commencing in 1982, but disagreed as to when it ended. The applicant claimed that the relationship had ended in 2010, when the parties physically separated due to him being arrested. The respondent claimed the relationship had ended in 1990. This made a material difference as pursuant to s 4C(2), the PRA does not cover DFRs which ended prior to 1 February 2002. The Court looked at the criteria for determining whether there was a DFR under s 2D, which include the duration of the relationship, nature and extent of common residence, existence of a sexual relationship, degree of financial dependence/interdependence, ownership/use/acquisition of property, mutual commitment to a shared life, performance of household duties, and public nature of relationship. The couple lived together in a rental property from 1982 and subsequently in a house which had been purchased by the respondent with her money in 1984, until they physically separated in 2010. Between 1982 and 1991 the parties contributed equally to the household, and the applicant did maintenance work around the house until he became self-employed in 1991 and his income decreased. He suffered a workplace injury in 1994 and after multiple surgeries could no longer work. He did not receive any ACC compensation, so his financial contributions to the household ceased. The respondent claimed that the relationship changed after the applicant suffered his injury, as he became withdrawn and they would no longer attend events with her. Because of the nature of the injury his diet became very limited and they would no longer cook meals and eat together, and the respondent claimed that the applicant slept most nights in a chair in the lounge. But her account of events did not match the evidence: her claim that the relationship ended in 1990 did not match her stating that it had to do with his injury, as this occurred 4 years later. The applicant was completely financially dependent on the respondent from the time of his injury in 1994 until 2010. They were deemed to have a degree of mutual commitment to a shared life, as they attended events, went to movies and dinner together. The respondent claimed she had wanted to ask him to leave the house, but did not. This was corroborated by witnesses. The couple had no children together. The Court held there was a qualifying DFR from 1982 until 2010. With regards to the out of time application, the Court had discretionary power to grant such an application. The Court looked at the factors from the Beuker case, considering the length of time in bringing the application after the statutory time-limit, the explanation for the delay, the merits of the case, and any prejudice to the respondent. The delay was one of more than 5 years, but this was partially due to the applicant being in prison, as well as a failure on the part of his lawyer to properly advise him in regards to lodging a claim of interest against the house. The house, despite being purchased solely by the respondent, had been used by both parties during their relationship and therefore fell into the category of "family home" under s 2, so the applicant had a prima facie claim to a share of it. There was prejudice to the respondent in that she had sold the house and used the profits to purchase a new house with her current spouse. The Judge found that in the interest of justice the factors in favour of granting an application outweighed the prejudice to the respondent, and extended the time for the applicant to file an application under the PRA. Judgment Date: 17 December 2019.