Sustaining notice of claim — application for occupation order — family home — Property (Relationships) Act 1976, ss 2, 27 & 44 — Domestic Violence Act 1995 — Buxtone v Buxton [2017] NZHC 131 — Heazelwood v Joie de Vivre Canterbury Limited [2015] NZCA 213 — Clayton v Clayton [Vaughan Road Property Trust] [2016] NZSC 29 — R v U [Relationship property] 1 NZLR 434 (HC — Nation v Nation [2005] NZFLR 103 — R v R [2010] NZFLR 555 — M v M [occupation order] [2010] NZFLR 746 — Tutaia v Norman [2015] NZFLR 783. The applicant sought to sustain a notice of claim lodged against the title of the property that she and the first respondent had lived in throughout their long-term relationship. The applicant also sought a continuation of an existing occupation order. Initially the respondent had been the sole owner of the property. At a date after the parties' relationship had begun, the respondent transferred the property into a trust. At the end of the relationship the applicant refused to leave the property. The Trust took no steps to remove her from the property until after the respondent gained primary care of the children, when despite the respondent offering her other accommodation and sending eviction notices, she still refused to leave. Central to the issues before the court was whether the respondent was a beneficial owner of the property and whether that property interest was relationship property of which the applicant had an interest. In order to be granted an occupation order the applicant had to prove she had a legal interest in the property. The Judge also had to be satisfied that making the order was necessary to protect the applicant or her family. Reasonable accommodation of everyone who might be affected by the order also had to be considered. Counsel for the applicant submitted on the basis of case law that the respondent had powers in relation to the trust which gave him effective control of the property. If he desired, he could arrange the trust capital in a way that would give him the sole benefit of the trust. These powers were items of relationship property, meaning the applicant had a share of the powers and a property interest in the house. The respondent submitted that the applicant had no valid claim as she had no interest in the property, and sought an order permitting the police to enforce the eviction notice in the event that the applicant refused to leave. The trust situation involved an independent trustee and a wide range of beneficiaries, meaning the respondent did not have powers as submitted by the applicant. Applying Clayton the Judge found that the respondent did have a beneficial interest in the trust property that was likely to be relationship property and noted that the Court has flexibility to make occupation orders on terms, duration and conditions as it sees fit. The Judge extended the occupation order for a fixed-term of three months, until the parties' relationship property disputes were resolved. This would also give the applicant time to find herself long term housing. The notice of claim against the title was also extended. Judgment Date: 19 July 2017. * * * Note: names have been changed to comply with legal requirements. * * *