Occupation order — common intention of trustees — sham trust — relationship property — Property (Relationship) Act 1976, ss 1M, 27 & 91 — Yeoman v Public Trust Limited [2011] NZFLR 753 (HC) — Gao v Elledge [2003] NZFLR 378 — Keats v Keats [2006] NZFLR 470. The applicant applied for an occupation order under s 27 of the Property (Relationships) Act (the PRA) of the flat he had lived in with his recently deceased partner for over 25 years. A few weeks after the death of his partner the applicant was served an eviction order by trustees of the trust that owned the flat. The applicant's partner had been a trustee but retired due to her ill health. The current trustees were the children of the applicant's late partner. Section 27(1) of the PRA allows the Court to make an order granting a partner the right to occupy the family home or other premises forming part of the relationship property. When proceedings are commenced after the death of the partner, s 27 is modified by s 91 which allows the surviving partner to occupy the premises to the exclusion of any other persons who may be entitled occupation. The applicant submitted it was the common intention of the trustees that the flat was his late partner's to do with as she wished. This submission was quickly rejected as his late partner's occupation of the flat could have been ended at any time by a majority vote of the trustees. It was also submitted that the trust, in regards to the ownership of the flat, was a sham. This was a difficult issue to raise as the scope of the Family Court's equitable jurisdiction has not been defined. The Judge considered relevant case law. There was the argument that the Family Court did not have jurisdiction to find a trust a sham, as that would require the exercise of the inherent jurisdiction of the High Court. However, there was a High Court decision which ruled the Family Court has power to ascertain if a trust is validly constituted for the purposes of determining ownership of trust property. The Family Court only has this power when an asset is apparently owned by one or both relationship parties and a third party contends to have a beneficial interest in the asset. There is no jurisdiction to hear disputed claims where the asset is owned by a third party and a relationship party claims beneficial ownership. As the trust in this case was a third party, the Court had no jurisdiction to find the trust was a sham as it related to the flat. This meant the flat was not the family home or relationship property of the applicant and his late partner. An occupation order could not be made under s 27 of the PRA. The Judge expressed sympathy for the applicant and his predicament, but stated the Court was one of law and not morals. Due to the harsh way the respondents had evicted the applicant from the flat, costs were to lie where they fell. Judgment Date: 28 May 2018.