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Byakova v Cherry [2020] NZFC 1964

Published 03 September 2020

Relationship property division — length of relationship — unequal division — chattels — family home — good faith — valuable consideration — relationship of short duration — Property (Relationships) Act 1976, ss 1M, 1N, 2A, 2B, 2D, 2E & 44 — Family Proceedings Act 1980, s 39(2) — Singh v Singh [2015] NZHC 1314 — Sullivan v Sullivan [1958] NZLR 912 (CA) — U v U [1994] NZFLR 474 — O v K [2004] NZFLR 507 — Martin v Martin [1979] 1 NZLR 97 — Graham v Graham [2017] NZHC 2142 — Powers v Powers [2016] NZFC 4413 — RHD v MOD [2012] NZFC 3932 — DMC v PSC FC Waitakere, FAM-2011-090-001238, 31 October 2011 — CLM v KBI FC Hamilton FAM-2010-010-001877, 8 March 2011 — Llamas v Massaar [2017] NZHC 357, (2018) 32 FRNZ 94 — Miller v Carey [2015] NZHC 887, (2015) 30 FRNZ 675 — Ryan v Unkovich [2010] 1 NZLR 434 (HC) — Regal Castings v Lightbody [2008] NZHC 87, [2009] 2 NZLR 433 — Potter v Horsfall [2016] NZCA 514, [2016] NZFLR 974 — Horsfall v Potter [2017] NZSC 196 — Patterson v Davison [2012] NZHC 2757 — Gray v Gray [2013] NZHC 2890 — Wilkerson v Wilkerson [2013] NZHC 293, [2014] NZFLR 179 — SMW v MC [2013] NZHC 396, [2014] NZFLR 71— JHM v GPM HC Timaru, CIV-2009-476-428, 5 March 2010 — Walker v Walker [1983] NZLR 560 — Herbst v Herbst [2013] NZHC 3535. This hearing was to determine the length of the parties' relationship and whether the respondent had intentionally defeated the applicant's rights by transferring 75 per cent of the family home to his daughter. The respondent claimed the parties had only been together for around a year, the relationship ending in October 2010. The applicant said the relationship ended in 2016. The Judge found both parties to be unreliable witnesses who stretched the truth for their own benefit. Based on third party evidence from the applicant's daughter, the respondent's friend, and realtors, as well as communications between the parties, the Judge was satisfied that the relationship lasted from 2009 to 2016. Section 44 of the Property (Relationships) Act provides that dispositions can be set aside if a party disposes of property with an intention to defeat the rights of the other person, the property is received in bad faith, for inadequate consideration and the recipient has not altered their position on reliance of the disposition. The Judge was satisfied the respondent's act in gifting 75 per cent of the family home to his daughter met the standard under s 44. The Judge did not believe the daughter had received the property in bad faith but as it was gifted there was not adequate valuable consideration. The daughter had not altered her position. The disposition could be set aside. However, the Judge noted there were available funds that meant the applicant could be compensated without setting aside the disposition. As there was a lack of information provided by the parties the quantum entitled by the applicant was unclear and required the parties to bring further evidence. Judgment Date: 18 March 2020.