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High Court of New Zealand Decisions |
Last Updated: 11 November 2013
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY CP76/97
BETWEEN
ADRIENNE KATHERINE AFELE
Plaintiff
AND CHRISTOPHER CHARLES
BROWNE
Defendant
Hearing: 23 and 27-31 August 2001
Counsel: Mr
R A Houston QC & Mr T Ingram for Plaintiff
Mr E Hudson & Ms D Y
Reynolds for Defendant
Judgment: 3 October 2001
INTERIM JUDGMENT
OF LAURENSON J
Solicitors:
Evans Bailey Fletcher Gibson, PO Box 19149,
Hamilton
Mr R A Houston QC, PO Box 19131, Hamilton
Edmonds Judd, PO Box
35, Te Awamutu
Mr E Hudson, PO Box 19252, Hamilton
[1] In this proceeding the plaintiff seeks to determine her interest in assets owned by the defendant following the breakdown of their de facto marriage which lasted for some four years between 1992 and 1996.
[2] The parties had been sweethearts before they each became married to other persons. In early 1990 the plaintiff was in the last stages of settling her matrimonial affairs with her husband. Quite by chance she met the defendant who was unhappily married for the second time. Their earlier attraction for each other was rekindled spontaneously and led immediately to what was clearly an exciting and satisfying romantic association for both.
[3] The plaintiff was, at this time, living in Auckland in the matrimonial home which still had to be sold in order to provide her husband with monies due to him. She had a small income from a variety of sources.
[4] The defendant was a successful quarry manager and businessman living on a small farmlet near Te Kuiti.
[5] Whilst the plaintiff’s matrimonial position was quite clear, apart from having to deal with the final obligations under her matrimonial settlement, the defendant’s was not. He was still married, albeit unhappily, with two young daughters. He had three older children by his first marriage. By 2 February 1993 he had signed a matrimonial property agreement and by November 1993 he was divorced.
[6] In the intervening period the parties had spent a considerable amount of time together, to the extent that by late 1992 they agreed that the plaintiff would sell her home in Auckland and come to live with the defendant in Te Kuiti. Prior to this time the defendant’s son had boarded with her in Auckland and she had assisted the defendant in caring for his young daughters when he was exercising his access rights to them.
[7] The parties made arrangements in relation to their property. The extent to which those arrangements could be said to be the subject of clear agreement is, to say the least, problematical.
[8] The plaintiff contends there was a clear agreement between them to marry and for each of them to share all their possessions with the other. To this end, and after her Auckland property was finally settled on 27 November 1992, she paid to the defendant two sums -
[9] In addition she contributed her income towards household expenses. In all, over the relevant period, she claims to have spent $252,722.32 directly or indirectly for the benefit of the defendant.
[10] The defendant, on the other hand, acknowledges the first payment effectively secured a quarter interest in his farmlet for the plaintiff, but the other was simply a loan to his business in respect of which she is now entitled to interest. He acknowledges that income was to be shared and any residue now forming part of any deposit accounts is to be shared equally.
[11] Unfortunately the renewed association did not last. The defendant did not accept there had been an unequivocal agreement to marry, nor was there to be a simple equal sharing of assets. As to the marriage, his view was there had been a real hope, and even prospect, of there being a marriage, but he, given his “track record”, required time to enable them both to be sure that marriage was indeed in their best interests.
[12] Not only did the association effectively come to an end by the latter part of 1996, it became marked thereafter with considerable acrimony and bitterness. The plaintiff obtained a non-molestation and occupation order on 19 November 1997. She has continued to occupy the farmlet up to the present time.
[13] The plaintiff now seeks orders vesting in her one half of all the defendant’s assets and including orders determining the future of the home. She relies on the following causes of action:
[14] The resolution of this matter has been fraught with difficulty given that the parties are diametrically opposed on virtually every factual issue involved. The resolution of these matters is not assisted by the paucity of documentary evidence. In most cases where this is available it is either incomplete or lacks any real consistency. This proceeding is, in a word, entirely typical of those which arise in such cases.
[15] Certain matters are, however, clear:
THE ASSETS IN DISPUTE
[16] When the parties became reacquainted in early 1990 the defendant was employed full time as the quarry manager for the Waitomo District Council. In addition -
[a] He and his wife traded in partnership providing heavy machinery for the Council’s quarrying operation;
[b] He was also a partner in another similar partnership;
[c] He held a one-third interest in a quarrying operation.
By 31 March 1997 both the last two interests had come to an end.
[17] According to the partnership accounts for the year ended 31 March 1991 the partnership with his wife owned net assets of $296,120 with the farmlet being included at $182,500.
[18] In the accounts for the year ended 31 March 1993 the net assets were $127,666. At this point his wife had received cash and other assets totalling $219,195 in settlement of her matrimonial property settlement and the farmlet had been transferred out of the accounts for $141,940.
[19] The last accounts presented were for the year ended 31 March 1997 at which point the business previously conducted with his wife was shown as having net assets of $312,397. In addition the farmlet was valued separately at $263,000.
[20] An up-to-date valuation of the farmlet as at 7 September 2001 is now $279,000.
CONTRIBUTIONS BY THE PLAINTIFF
[21] In early 1990 the plaintiff was living in her former matrimonial home in Northcote. This was sold for $220,000. Following settlement she received $167,393.92 from which she paid:
This left a balance of approximately $129,393. Over the period 31 March 1991 to 31 March 1997 she received income, after tax, totalling $45,497. The total from these two sources thus being $174,890.00.
[22] In evidence the plaintiff said she also had other sources of income:
“There was other money. There were substantial gifts from my mother, an inheritance from my father, winnings from bonus bonds, earnings from other people.”
I have to note that apart from a payment from the mother of $1,000 there is no available record of these additional amounts, nor did the plaintiff attempt to give any details as to the amounts or when they were paid.
[23] The above figures have to be seen in relation to schedules of payments compiled by the plaintiff’s daughter totalling $252,722.67, this being the total amount claimed by the plaintiff to have been contributed by her to the relationship with the defendant. Included in this total are noted two payments:
Both these amounts were withdrawn from an ASB savings account. The book for this account was lost when the plaintiff’s handbag was stolen at some point. A microfiche was obtained from the bank indicating the withdrawals were:
• $45,336.38 on 6 February 1993
• $45,556 on 18 February 1993.
[24] Also included in the schedule is a payment of $8,000 on 2 April 1993 to C.C. and K.R. Browne Contracting - car purchase. It was acknowledged by the defendant that this amount had been received from the plaintiff as a trade-in on a Corolla car. This amount had then been used as part of the purchase price for a Sentra car.
[25] The schedule totalling $252,722.67 has caused me some real difficulty. It comprises six sub-schedules:
1. “Payments made on Chris’ behalf” between 6 July 1990 and 15 November 1996 $66,382.72
2. “Investments into farm property” between 24 October 1990 and 6 October 1999 $68,591.95
3. “Payments made for Chris’ children” between 11 June 1990 and 15 November 1996 $17,443.94
4. “Groceries for Chris and his family” between 9 April 1990 and 26 June 1996 $24,326.62
5. General living costs paid on Chris’ behalf between 22 March 1990 and 14 March 1995 $22,067.09
6. “Other Investments” between 7 February 1993 and 15 April 1995 $53,910.00
TOTAL: $252,722.32
[26] Quite apart from the rather vague explanation as to a sufficient source for all these monies, I have to accept the defendant’s submission that the schedules cannot be regarded as reliable. A significant number of discrepancies were highlighted in cross-examination. The defendant, through another witness, Mr Reeves, tried to verify the payments claimed, but with limited success given the records which were available.
[27] I have concluded that payments were indeed made by the plaintiff under the various headings in the schedule (including the three major payments of $45,336, $45,556 and $8,000), but the totals provided cannot be regarded as being any more than a very rough guide. Even that conclusion may be over generous to the plaintiff.
COMMON INTENTION
[28] In summary the plaintiff alleges that within a short time of their becoming reacquainted, and them embarking on an intense romantic relationship, she and the defendant agreed to marry and pool equally their financial resources. They were unable to do either immediately because the defendant was still married. By November 1992 it was clear he had been able to resolve all matters with his wife, such that a matrimonial agreement was signed, and largely implemented, by 2 February 1993. In anticipation of this the plaintiff sold her Auckland home and moved to Te Kuiti to live with the defendant. Shortly afterwards, in February 1993, she made the two payments totalling $90,892 which she says were her agreed contribution to the defendant’s farmlet and business which had previously been carried on by him and his wife.
[29] No legal steps were taken to record her interests in either. The defendant’s refusal to do so, and to proceed with the marriage were major factors which led, in due course, to the association ending towards the end of 1996.
[30] The plaintiff starts by alleging that quite apart from her financial contribution she gave up her home, church and friends in Auckland, then undertook a full range of domestic duties for the defendant and his children all because she and the defendant had formed a common intention they would marry and share all they owned.
[31] The defendant denies any agreement to marry and any agreement to share, beyond acknowledging the plaintiff s entitlement to -
[32] He further acknowledges there was an agreement that the plaintiff would pay for all household expenses subject to him paying outgoings such as rates and insurance, and that she did contribute some furniture, furnishings and other items including shrubs for the garden.
[33] Fisher J in Cossey v Bach [1992] 3 NZLR 612 summarised the principles for the common law division of de facto marriage property.
[34] The starting point is the legal title. In this case the legal title to the assets in issue, namely the farmlet and business assets, have remained in the name of the defendant. The only exception is an insurance cover for the household contents which are in both names. Thus it is necessary to determine whether the parties -
[a] unequivocally expressed an intention that there be some other arrangement as to the property; and
[b] the intention so expressed was common to both parties or expressed by the defendant as the person having the disposing power in the property in question; and
[c] The intention so expressed is still pertinent to the issues now before the Court.
[35] Except to the extent I have noted, the defendant denies any all-encompassing intention to share all assets as alleged by the plaintiff. The plaintiff alleges that agreement was reached by them over a period, but certainly by the time she moved to Te Kuiti in late 1992. Apart from references to sharing with her in the context of the very romantic correspondence near the beginning of 1990, there is neither any documentary record of any agreements, nor any evidence of particular conversations during which specific matters were discussed.
[36] Against this background I am unable to conclude that it is more probably the case that the defendant did agree unequivocally to an equal division of all property. The reason why he says he did not is credible, namely that he wanted to ensure that his estate was largely preserved as an inheritance for the three children of his first marriage. Stated more specifically, whilst acknowledging the plaintiff’s entitlement to a quarter interest in the farmlet, he resisted any increase beyond this for the reason stated.
[37] Having reached this point it is quite clear the plaintiff did make contributions to the defendant’s property and these are acknowledged by him in relation to the farmlet.
[38] The payment of $45,556 on 18 February 1993 is, however, acknowledged only as a loan to the business as distinct from a contribution amounting to a purchase of a share in the business.
[39] Notwithstanding the plaintiff has alleged that all payments and other contributions made by her were all pursuant to an overall agreement to share equally, it is, I think, appropriate at this point to deal separately with the farmlet and then the business assets.
THE FARMLET
[40] Given the defendant’s acknowledgment of the plaintiff’s contribution in this asset, the issue becomes not one of deciding if there is an interest, but rather the extent to which that should be quantified.
[41] The defendant has conceded the payment of $45,336 on 6 February 1993 did create a resulting trust as to one quarter of the value of the farmlet. This concession was based on the sum paid in relation to the then value of the property. This immediately raises the question of what was the value of the property as at 6 February 1993. According to the evidence it was valued by -
[a] Young & Barton as at 21 January 1992 at $155,000
[b] Carnow & Tizard as at December 1992 at $180,000
[42] In fact, according to the evidence relating to the matrimonial property settlement with the defendant’s wife, it was valued at $140,000.
[43] It was transferred out of the accounts of the business for $141,940 prior to 31 March 1993 and notwithstanding it had been included in those accounts previously at $182,500.
[44] In my view, and assuming this value had been negotiated as being appropriate by the defendant and his wife at the time, I accept the figure of $142,000 as being the best indicator of the actual value at about the time the plaintiff contributed her $45,336.
[45] This being the case the plaintiff’s contribution would, in the first instance, be quantified as a proportion of $142,000, i.e. .3192%. This is greater than one quarter and less than one half.
[46] The plaintiff contends, however, that her actual contribution was $68,591.95 with the extra $23,255 being made up of expenditure on the property for such items as drapes, furniture, improvements and shrubs. On this basis the total contribution would amount to .483% or nearly half. The extra payments were, however, allegedly made over the period 24 October 1990 to 6 October 1999. Payments prior to 6 March 1993 amounted to $9,251.77. This, plus $45,336 produces a total of $54,587 or .384%.
[47] Having established that the plaintiff did contribute directly to the farmlet it becomes a question of determining the reasonable expectation of the parties as to the extent to which the contribution should be recognised.
[48] The prima facie value is the arithmetical calculation I have referred to. However, the defendant alleges the contribution could reasonably be expected to produce a one quarter interest whereas the plaintiff says one half.
[49] In Gillies v Keogh [1989] 2 NZLR 327 Cooke P held that when considering the issue of reasonable expectations in the context of a de facto union a Court should give weight to -
[a] The degree of sacrifice by the claimant;
[b] The value of the contributions of the claimant compared to the value of the benefits received;
[c] Any property arrangements the parties may have made themselves.
[50] As to [a] I consider the plaintiff was involved in a considerable sacrifice. She had:
[51] The first of these matters is a direct financial result of the parties’ joint decision that she should live with the defendant in Te Kuiti. Unless she could reinvest all or part of her proceeds in another property she would face the probability that she would have insufficient funds to repurchase again in the future.
[52] As to [b] the amounts actually contributed up to and including 6 February 1993 were approximately only one third of the value of $142,000.
[53] As to [c] I can find no basis why the defendant should have determined the payment of $45,336 qualified for only a one quarter interest. He actually said this amount was paid in order to repay the existing mortgage. This, however, was included in the accounts at $49,849.
[54] My impression is that when the plaintiff paid the $45,336 she may have had some expectation that she was thereby acquiring a one half interest in the property. Equally, however, I am satisfied the parties did not specifically address the issue of the extent of her interest at that time. The actual figure paid does not, on the evidence, provide any assistance in determining the extent of the interest. The amount is not in round figures. It does not equate to the amount of the mortgage repaid nor does it appear to correlate with any definable proportion of the value of the property at the time. Certainly it is clear the plaintiff did make other contributions including financial contributions to the relationship. These were only relevant to the extent that these may have amounted to a contribution to the asset in question. The plaintiff did make financial contributions to the property in the form of, for example, furnishings and plants. On the evidence available however, it is not possible to quantify the extent of these contributions in order to provide a precise amount which can, in turn, be used as an indicator of the extent of the interest acquired by the plaintiff. Later on the defendant conceded a one quarter interest. That seems to have occurred in the context of demands by the plaintiff and a decision on his part that he had an obligation to his children by his first marriage.
[55] In assessing the issue of reasonable expectation
“Attention is not to be confined to the inception of the relationship or the time when any property in question was purchased. The enquiry extends to the whole circumstances and history of the relationship.” (see Cooke P in Gormack v Scott [1995] 13 FRNZ 43, 47).
[56] The assessment of what value should be placed upon a proved contribution in the context of the parties’ reasonable expectations is not easy. Tipping J in Lankow v Rose [1995] 1 NZLR 277, stated the position (at 295) as follows:
“In the case of a de facto union, the claimant does not start from a presumptive half-share but rather from nothing. A de facto claimant must demonstrate first a case for an interest and then what that interest should be. The interest must broadly reflect the contributions. Arithmetical precision will generally be unattainable and is in any event not necessary. The Court must, however, do its best to reflect in the assessed shares the value of the claimant’s contributions. That value will represent, if uncompensated, the amount of the unjust enrichment accruing to the defendant which in turn is the amount of the claimant’s sacrifice.
The contributions must be judged from a proprietary point of view. By contrast with the Matrimonial Property Act regime the focus in de facto cases is on contributions to property not contributions to the partnership: of course contributions to the partnership will often also be contributions to property. In the end the Court must assess as closely as reasonably possible what weight the claimant’s contributions have had against the contributions of the defendant in the acquisition, improvement or maintenance of the property or its value.”
[57] In my view by applying these principles to the present case a proper result should be that the plaintiff is entitled to a 45% interest in the farmlet. This is based on the payment of $45,336 on 6 February 1993, plus an allowance for further cash contributions before and after that date, and a recognition of the work done by the plaintiff to improve the property and its surrounds. It also recognises her personal sacrifice in selling her own home which, in turn, enabled her to make the direct financial contribution of $45,336 on 6 February 1993.
THE BUSINESS
[58] Here again the plaintiff claims a half share based on an agreement with the defendant. He denies this, but acknowledges a loan of $45,000 which, he says, was not required in order to assist the business, but was rather accepted by the business in order to enable this sum to be invested at a higher rate of interest for the benefit of the plaintiff. Accordingly he acknowledges the loan must be repaid and with compound interest.
[59] The circumstances regarding the payment of $45,556 on 18 February 1993 are riddled with inconsistencies.
[60] The legal title to the business does not assist the plaintiff. The assets are all in the name of the defendant as the sole proprietor following the termination of the partnership with his ex wife. Furthermore, in these circumstances, it is clear there is no unequivocally expressed common intention in relation to the payment of $45,556.
[61] It is equally clear, however, that the plaintiff paid this amount to the business, and she has received no benefit from it by way of interest. On the face of it the business has had the use of the money up to the present time. The fact that the loan account has not been reduced by the $21,500 said to have been advanced by the business to the plaintiff, simply serves to confuse the issue even further.
[62] The issue is whether the payment was in fact a loan or, as the plaintiff contends, the price paid by her to acquire a half interest in the business.
[63] In my view, and notwithstanding the inclusion of the amount of $45,000 in the books of the business, the issue falls once again to be determined by an examination of the reasonable expectations of the two parties.
[64] So far as the plaintiff is concerned she refers again to her allegation there was a general agreement to share equally against the background of the sacrifices she made when moving to Te Kuiti.
[65] The actual amount contributed on 18 February 1993, i.e. $45,556, was equal to only .356% of the net assets shown in the business accounts for the year ended 31 March 1993.
[66] The only apparent property arrangement made in relation to this payment was the inclusion of the sum of $45,000 as a term liability in the accounts for the same year.
[67] When coming to consider the reasonable expectations of the parties in relation to this claim, I consider there are two matters which are important. First I can understand that in the circumstances which surrounded the plaintiff’s move to Te Kuiti, both parties would recognise the plaintiff was entitled to some interest in the farmlet in order to compensate her for giving up her own home. That was, in fact, recognised by the defendant, but not to the extent claimed by the plaintiff.
[68] Secondly, although the plaintiff has repeatedly alleged there was a general agreement to share all assets and income, this does not seem to have, in fact, been the case. For example, there is reference in the evidence to the defendant owning another property in Broadfoot Street, Te Kuiti. He also had substantial interests in other businesses. Similarly the plaintiff retained at least one other asset, namely the loan of $20,000 made to her son after selling her home, and which was repaid in 1994. It may be that the plaintiff also retained other assets in her own name, but it is impossible to determine this given the paucity of any evidence as to her financial position. Whatever may be the case in this regard, I find it difficult to accept, viewing the whole of the circumstances relating to the partners’ relationship, there would have in fact been a general agreement to share all assets equally. Most significant in this regard is the inescapable fact the defendant did have three children by his first marriage.
[69] Viewing these factors together I do not consider it is reasonable to contemplate that a person in the defendant’s position would agree to share all his estate (other than the farmlet) with the plaintiff at a point where, after two years close association, they were about to commence a full time relationship in Te Kuiti..
[70] For these reasons I conclude that the payment of $45,556 on 18 February 1993 was, in fact, no more than a loan. Whether it was made in order to assist the defendant’s business at a time when he had just paid out most of his second wife’s matrimonial settlement and/or to secure a greater rate of interest for the plaintiff, does not matter. Either reason provides, in my view, a sensible basis for holding the payment was, in fact, a loan.
[71] The plaintiff argued there were two matters which indicated the payment was not a loan and was indeed a payment to secure an interest in the business. These were:
[a] She has in fact, never been paid interest on the loan; and
[b] She had the use of a Sentra car purchased in the name of C.C. & K.E. Browne Contracting. She paid $8,000 of the $30,000 purchase price and the business the remainder. After the end of the relationship this car was transferred into her name. She argues that because the share of the purchase price advanced by the business was never deducted from the loan included in the annual accounts for the years after purchase, this is indicative that she had in fact acquired a share in the business.
[72] As I have noted already, there are inconsistencies in the way the above matters have been treated in the books of the business. One very good example is the fact that the business apparently claimed GST on the purchase of the car, but it is not included in the depreciation schedule for the assets of the business.
[73] Having considered these matters I have concluded they are not capable of any logical explanation based on the financial records, but they are explicable in the context of the relationship between the parties.
[74] By reference to the correspondence between them in the first half of 1990 it is clear the parties threw themselves into a highly emotionally charged relationship at a time when both were in the process of terminating their marriages. Their expressions of commitment to each other were couched in what later, sadly, proved to be overly extravagant terms. Later on both were forced to reconcile their wholehearted declarations of commitment with the reality which emerged after the plaintiff came to live in Te Kuiti. On the one hand the plaintiff found it necessary to press the defendant to carry out agreements which she perceived had been made. The defendant, on the other hand, had to consider his other commitments.
[75] I am satisfied, having read the correspondence, the plaintiff wholeheartedly embraced and accepted what appeared to her to be statements of total commitment by the defendant. On examination it is clear, however, that even in the early, most passionate stages of the relationship, the defendant was not totally committed. In one letter headed “7.58 Wednesday pm” he thanked her for offering herself in marriage to him. His response was-
“We have a great potential in that we want each other and we want for each other. I’m excited with the possibilities and I am a little impatient to make things happen too quickly but I think time will show us whether we are right or wrong and also it will test us in how we feel towards each other.”
[76] After the plaintiff eventually came to Te Kuiti in about December 1992 the defendant’s reservations obviously assumed a greater significance. In the early stages, however, he was caught by his previous expressions of apparently total committal to the plaintiff. The actual extent of that commitment was not something which could realistically be redefined overnight.
[77] It is within this context that the dealings of the parties have to be considered. Monies were proffered by the plaintiff on one basis, but accepted by the defendant with reservations which were not, and probably could not, be stated to the plaintiff at the time. This accounts for the lack of precision and consistency in the records relating to the assets in question. The defendant accepted the $45,556 on 18 February 1993, but the basis upon which it was accepted was not defined. He, with his reservations, chose to record it as a loan. The plaintiff has not been able to satisfy me on the balance of probabilities it was not. The failure to pay interest on the loan is explicable on the basis that neither party were ready or able to face the prospect of defining the position.
[78] The same applies to the purchase of the Sentra car. The defendant wished to buy a new BMW. At the same time the plaintiff needed a newer car to enable her to travel to and from Auckland in connection with her employment. She had, I consider incorrectly, felt she had bought into the business and that this would provide both of them with new vehicles.
[79] The defendant was not prepared to face up to the position by stating precisely on what basis the plaintiff’s new car would be provided. The result was a hybrid situation where the plaintiff provided $8,000 and the business the remainder. The business collected the GST and paid for petrol. The car was registered in a non-existent name which was more related to the business than the plaintiff. No financial adjustment was made according to the accounts of the business, nor was the car brought into the business accounts. In the end, when the relationship ceased, the car was transferred into the plaintiff’s name.
[80] Having determined the plaintiff did not acquire an interest in the business assets, I am left with having to determine the legal status of this car.
[81] All the above apparent inconsistencies could have been resolved by the defendant at the time the car was purchased. For the reasons I have referred to he chose not to. Although the car was used by the plaintiff, to all other intents and purposes it remained his property. It was registered in a name referable to his business, which had claimed the GST, and thereafter the business paid for the petrol. This scenario is subject to one qualification, namely that the plaintiff had advanced $8,000 towards the initial purchase price, i.e. 4/15ths.
[82] In my view the appropriate way in which to deal with this asset is to find that the value of this car, as at the date when it was transferred to the plaintiff, i.e. 12 November 1999, should be apportioned between the parties. The defendant is entitled to 11/15ths and the plaintiff 4/15ths.
[83] Having determined the plaintiff did not acquire an interest in the business I am unable to see that there was any contribution made to any of the defendant’s other assets including:
[a] The BMW cars purchased through the business; and
[b] The shareholding in Waihi Electrical (1996) Ltd which was also provided from funds provided by the business.
[84] There is one exception to this, namely the household contents and Sony Handycam video which are jointly owned, according to the invoice from the insurance brokers Crombie & Lockwood.
[85] I consider these items (excluding drapes which are included in Mr Tizard’s valuation of the house), should be valued independently in order to establish the quantum of each half interest.
[86] SUMMARY TO THIS POINT
[a] The plaintiff is entitled to a 45% interest in the farmlet as tenant in common with the defendant. Although not precisely quantified it seems that both parties contributed cash towards the property after 6 February 1993. On the evidence I am unable to differentiate between those contributions. Accordingly both parties should share in the increase in value from that date. Based on the valuation by Mr Tizard as at 7 September 2001 the present value of the plaintiff’s interest is, therefore, $125,550.
[b] The plaintiff has been in exclusive possession of the farmlet since 17 July 1997. Accordingly she must account to the defendant for 55% of the rental as assessed by Mr Tizard.
He assessed the rental for the home at $7,800 per annum
and the farmland at $3,000 per annum
10,800
55% = $5,940 per annum
In addition she is liable to pay 55% of the rates to date totalling $3,656, i.e. $2,010.80.
[c] The plaintiff is entitled to repayment of the loan of $45,556 made on 18 February 1993, together with interest thereon since that date. Various calculations were supplied to me. The defendant’s accountant provided one such calculation as Exhibit G. This included interest rates prescribed by the Inland Revenue Department for determining an appropriate interest rate in the case of low interest loans. The rates are generally about 2 per cent higher than term deposit rates. This calculation went on to compound the annual interest sums over the period 19.2.93 to 28.8.01. The total thus calculated was $47,402.81. Mr Ingham agreed that the loan monies had become intermingled in the business accounts and can therefore be said to have been used for the benefit of the business over the period. This being the case I am satisfied that this basis of calculation is appropriate in this case.
[87] The defendant is entitled to 11/15ths of the value of the Sentra as at 12 November 1999, this being the date when the vehicle was transferred into the plaintiff’s name.
[88] FURTHER MATTERS
[a] The alternative claim pursuant to the Domestic Actions Act 1975. In view of the orders referred to I do not see that it is necessary to go on to consider this.
[b] Claim for Exemplary Damages. This claim was not argued before me. In any event I am quite satisfied that the defendant’s conduct in this matter could not, on any basis, be described as sufficiently outrageous to merit punishment by an award of exemplary damages.
[c] Further orders in relation to the farmlet. The plaintiff has sought orders for -
[i] Injunctive relief granting her sole occupancy of the farmlet; or
[ii] Directing a sale of same pursuant to s 140 of the Property Law Act 1952 together with any necessary consequential directions.
At the present time she occupies the property under an occupation order pursuant to s 53(1) of the Domestic Violence Act 1995 made in the Family Court at Hamilton on 19 November 1997. That order is expressed as being intended to remain in force until the proceeding in this Court has been heard and determined.
In fact neither party really addressed those issues. The result is that I am at somewhat of a loss as to know quite how to approach them. I rather suspect that having identified the extent of the parties’ interests, they may now be able to resolve themselves the very practical question of who occupies the property. If I am incorrect in this and the parties do require the assistance of this Court to resolve the issue, then I will require further submissions regarding same.
This judgment is accordingly issued as an interim judgment with leave being reserved to either party to apply to have the hearing resumed for the purpose of determining the outstanding issue of occupation or sale.
Leave is also reserved to either party to seek further directions in relation to any difficulties which may arise as to the calculations of amounts based on the orders already made.
COSTS
[89] The plaintiff has not succeeded in her claim to the extent sought, but she has been successful in obtaining more than was conceded by the defendant. She is, accordingly, entitled to costs which I direct are to be assessed on the 2B formula provided for in RR 48 and 48B of the High Court Rules.
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