Ipsofactoj.com: International Cases [2003] Part 7 Case 9 [NZCA]




- vs -





15 APRIL 2002


Baragwanath J


  1. Mr. King challenges on appeal the decision of the High Court at Auckland in favour of his former de facto partner Mr. Church that, following the termination of their relationship, Mr. Church should receive certain interests in property which Mr. King asserts to be exclusively his. As the relationship ended before 1 February 2002, the case is governed not by the Property Relationships Amendment Act 2001 ("the Relationships Act") but by the pre-existing judge-made law. There was no cross-appeal.

  2. When they first met on 31 December 1982 Mr. King was 34 years of age and practising as a chartered accountant. He owned a house in Matipo Street, Mt Eden, where Mr. Church joined him, and a section at Waitakere. Mr. Church was then 40 years of age and was employed as a process worker. He had no significant assets. Mr. King sold both properties and used the proceeds to buy for $179,000 another at Waimauku where the two men went to live. They bought in their joint names for $22,000 a property at Red Beach. At the end of the relationship the Waimauku property was worth $380,000 and the Red Beach property was sold for $42,550.

  3. For the first ten months of their joint residence at Matipo Street, Mr. Church paid board; after that he accepted responsibility for buying and paying for the parties’ food and groceries, cooking their meals, and looking after the house. From 1987 until the termination of the relationship in October 1998 Mr. Church was either unemployed or working for Mr. King without pay or at a wage equivalent to the unemployment benefit.

  4. It is common ground that a close and loving relationship developed between the parties, which would nowadays be characterised as their "living together as a couple" in a de facto relationship in terms of s2D of the Relationships Act, although Mr. King challenged the Judge’s finding that it spanned the whole period of their living together.

  5. The issues for the High Court were

    1. whether the intention and expectations of the parties and the respondent’s expenditure and efforts entitled him to an equity in the Waimauku property that should be given legal effect; if so,

    2. how in the circumstances the equity should be satisfied; and

    3. how the proceeds of sale of the Red Beach property should be divided.

    The ultimate issue on appeal is whether the Judge’s conclusion that Mr. Church was entitled to an interest in the Waimauku property, taking into account his share in the Red Beach property, is shown to be wrong. For the reasons that follow we are satisfied that the decision of the High Court must stand.


  6. The judge-made common law has long recognised that one who contributes to the acquisition, increase or preservation of another’s property upon the faith of a just expectation created or encouraged by that other, may, in the absence of agreement or reason to presume intention to confer a benefit without exacting compensation, be entitled to an equity which the Court will work out in such manner as to avoid injustice: Plimmer v The Mayor of Wellington (1884) 9App Cas 699.

  7. In the sphere of family relations that principle has been put to use to determine the legal rights of separated parties to a de facto relationship. What is a just expectation and a just award are to be inferred from all the circumstances of the particular relationship considered against the current norms of society. Those have altered markedly in recent times. Many of the authorities are concerned with filling the gap exposed by changed perceptions of the value of the contributions made by a woman who plays her part in the relationship by remaining at home and providing household services while her male partner goes to work. Mr. King contends that the application of equity’s principles to the present case, between separated male partners, requires a fundamentally different approach than has been adopted in the female/male cases. Mr. Church contends that similar principles apply to both heterosexual and homosexual relationships, each of which the Relationships Act now terms a de facto relationship. That is the crux of this appeal.

  8. As social conditions change the common law is progressively evolved by the Courts, often by analogy with Parliament’s policy expressed in legislation: South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282, 298 per Cooke P. Because of their powerful influence upon the development of the judge-made law governing de facto relationships it is convenient before turning to the recent cases in that sphere to look briefly at some developments of the Courts’ approach to the statute law as to division of property following breakdown of a marriage.

  9. Section 6(1) of the former Matrimonial Property Act 1963 provided that a Court considering a claim to relief

    shall, where the application relates to a matrimonial home or to division of the proceeds of the sale of a matrimonial home, and may in any other case, have regard to the respective contributions of the husband and wife to the property in dispute (whether in the form of money payments, services, prudent management, or otherwise howsoever).

    By subs (1A) the Court was empowered to make an order in favour of a husband or wife

    notwithstanding that he or she made no contribution to the property in the form of money payments or that his or her contribution in any other form was of a usual and not an extraordinary character.

    Aside from the extended definition of "contributions", such formula closely resembled the long established judge-made rules of equity.

  10. Until 1976 the Courts had taken a narrow view of the contribution made by a wife to such assets as the home, which at that time was likely to have been largely funded by her husband. But in Haldane v Haldane [1976] 2 NZLR 715 the Privy Council, restoring a judgment of the Chief Justice, took a broader view. Their Lordships observed

    .... a contribution ranks for consideration even though it is that of an ordinary housewife in her domestic sphere. It is not difficult to see the reason for this as regards the matrimonial home. The wife’s performance of ordinary housewifely duties makes no direct contribution to the acquisition or enhancement in value of the matrimonial home. It is nevertheless an indirect contribution to its retention as an asset within the family: the husband would otherwise either himself have to perform such domestic duties, to the detriment of activities more immediately profitable financially, or he would have to pay someone else to perform them, to the pro tanto diminution of his assets. To sum up here, the wife’s performance of domestic duties in the matrimonial home was regarded by the legislature as a contribution to the matrimonial home.


    How [contributions] are to be taken into account depends on the facts of the particular case. Initially a gift or bequest to one spouse only is likely to fall outside the Act, because the other spouse will have made no contribution to it. But as time goes on, and depending on the nature of the property in question, the other spouse may well have made a direct or indirect contribution to its retention.

  11. The 1963 Act never applied to former partners of de facto relationships of any kind and was itself superseded by the Matrimonial Property Act 1976, which in the case of the matrimonial home and family chattels replaced the enquiry into contributions by a powerful presumption of equal sharing between spouses. That presumption was extended to former de facto relationships by the Relationships Act with effect from 1 February 2002. The public policy as to recognition of "contributions" to marital property expressed in the 1963 legislation exerted potent force on the development of the principles of equity to deal with contributions to the property of one de facto partner by another. In the leading decisions Gillies v Keogh [1989] 2 NZLR 327 and Lankow v Rose [1995] 1 NZLR 277, each involving male and female partners to a de facto relationship, this Court maintained the requirement that to secure relief a plaintiff must establish contribution to any asset in which an equity was claimed. But they revised radically previous thinking as to what would be accepted as a qualifying contribution.

  12. In Lankow (page 294 lines 48-52) Tipping J, in a judgment concurred in by McKay J, listed four factors to be established by a de facto claimant:

    1. Contributions, direct or indirect, to the property in question.

    2. The expectation of an interest therein.

    3. That such expectation is a reasonable one.

    4. That the defendant should reasonably expect to yield the claimant an interest.

  13. Tipping J observed "A contribution to the relationship will not qualify unless it is also, as will often be the case, a contribution to that property" but added "That is not as restrictive an approach as it may appear." (page 294 lines 8-10) He stated (page 295 lines 4-21) that not only direct but

    .... indirect contributions should .... qualify .... There may be greater difficulties of proof and assessment when the contributions are indirect but, once established, they are as real as direct contributions. At the simplest level one partner might have paid for all the groceries with the other servicing and reducing the mortgage. That is an indirect contribution by the former, no less real than if the roles were reversed.

    I would allow as a contribution any payment or service by the claimant which either:


    of itself assists in the acquisition, improvement or maintenance of the property or its value or


    by its provision helps the other party acquire, improve or maintain the property or its value.

    To make a rigid cut off at direct contributions .... is to ignore the realities of life and to put an unreal premium on the way de facto partners allocate responsibilities, financial and otherwise, in their relationship. On this basis it can be seen that contributions in the home may qualify as contributions to the home. Further than that it is not necessary to go in this case ....

    Hardie Boys J went further. He said (page 282 lines 14-33)

    The essential requirements I see to be twofold: that the plaintiff contributed in more than a minor way to the acquisition, preservation or enhancement of the defendant’s assets, whether directly or indirectly; and that in all the circumstances the parties must be taken reasonably to have expected that the plaintiff would share in them as a result. Both statements need some amplification. In the first place, by contributions to assets one is not referring to those contributions to a common household that are adequately compensated by the benefits the relationship itself confers. The contribution must manifestly exceed the benefits. Putting it in conventional estoppel terms, the plaintiff’s contributions must have been to his or her detriment; or in Canadian terms they must have resulted by the end of the relationship in the enrichment of one to the juristically unjustified deprivation of the other. Further, the contributions need not be in money; they may be in services or in any other respect. But there must be a causal relationship between the contributions and the acquisition, preservation or enhancement of the defendant’s assets for, as a claim to a constructive trust is a proprietary claim, a claim to an interest in property, the contributions must have been made to assets; not necessarily to particular assets, but certainly to the defendant’s assets in general. The contributions may then be recognised by the imposition of a trust over a particular asset or particular assets, which may in turn be quantified or satisfied by a monetary reward.

    [underlining added]

    Gault J stated (page 289 lines 10-19)

    For my part, if I were to choose between the various approaches, I would be inclined to favour that of the Supreme Court of Canada as expounded in Peter v Beblow [(1993) 101 DLR (4th) 621]. I see it as both principled and flexible. It would cover cases beyond those in which there is a claim for relief by way of constructive trust in respect of particular property – e.g. where one partner has maintained the other during a period of study. It seems better able to encompass gradual enrichment over a lengthy period of contributions with less focus on the time of acquisition of property. It might also have application in cases where there has been enrichment even though there was a clear understanding that a proprietary interest in particular property would not be obtained.

    Cooke P sounded a note of caution (pages 280 line 52-281 line 5)

    There is necessarily some uncertainty. How could it be otherwise when human relationships are so variable? Legislation laying down some more hard-and-fast approach might be desirable, not only theoretically but in practice. If any such change is under consideration, however, a point to be borne in mind is that the present New Zealand case law represents an attempt to ensure justice while recognising that there is a basic difference between legal marriage and de facto union. In contemporary society it may be questionable whether, ideally, any law can aim at more.

  14. Gault J’s reference to Peter v Beblow is to the statement by McLachlin J, concurred in by a majority of the Supreme Court, that (page 653 a-d)

    .... a constructive trust cannot be quantified by simply adding up the services rendered; the court must determine the extent of the contribution which the services have made to the parties’ property.

    Notwithstanding the trial judge’s failure to make this link, his conclusion that the appellant had established a constructive trust entitling her to title to the family home can be maintained if a trust of this magnitude is supported on the evidence. This brings me to a departure from the methods used below. The parties and the Court of Appeal appear to have treated the house as a single asset rather than as part of a family enterprise. This led to the argument that the appellant could not be entitled to full ownership in the house because the respondent had contributed to its value as well. The approach I would take – and the approach I believe the trial judge implicitly to have take – is to consider the appellant’s proper share of all the family assets. This joint family venture, in effect, was no different from the farm which was the subject of the trust in Petkus v Becker [(1980) 117 DLR (3d) 257].

  15. The Relationships Act applies fully, to all de facto relationships that are not "of short duration" (s2E), the rule that on division following separation

    each of the .... de facto partners is entitled to share equally in -


    the family home; and


    the family chattels; and


    any other relationship property

    as those terms are defined.

  16. But the New Zealand judge-made law applicable immediately prior to the Relationships Act, by which this case is to be determined, does not affect the general division of relationship assets required by the Relationships Act. Rather it continues to require proof of contribution to the property claimed and, Gault J’s decision aside, has not to date adopted the Canadian approach of appraising a claimant’s contribution to a "family enterprise".

  17. Over recent years an appreciation has progressively evolved that the common law’s failure to recognise the significance of same sex relationships had worked injustice. The best evidence of that is Parliament’s recognition, in the Relationships Act, that for the purposes of division of property of parties to such relationship they should in future be treated as equivalent to marriage. That conclusion is not one of general application, as is seen in the decision of this Court in Quilter v Attorney-General [1998] 1 NZLR 523, where some of the major themes are discussed. But in Erven Warnink v Townend & Sons (Hull) Ltd [1979] AC 731 the House of Lords developed the common law of passing off by analogy with the consumer laws enacted by Parliament for the protection of the public. At page 743 Lord Diplock stated the principle

    Where over a period of years there can be discerned a steady trend in legislation which reflects the view of successive Parliaments as to what the public interest demands in a particular field of law, development of the common law in that part of the same field which has been left to it ought to proceed upon a parallel rather than a diverging course.

    The very close similarity of the concepts of equity and of the 1963 statute, each relating relief to contribution, leads us to treat the latter as providing valuable guidance by way of analogous legislative policy.

  18. The Plimmer principle of just expectation created or encouraged by the defendant, while dependent upon the particular facts of an individual case, is to be applied against a background of current social norms. They can now include the perception of a particular same sex relationship as closely analogous to what has in the past been seen as a stereotypical opposite sex partnership.

  19. It is now recognised that opposite sex relationships, no less than same sex relationships, can differ markedly, a fact noted by s2D (2)-(3) of the Relationships Act


    Meaning of de facto relationship



    In determining whether 2 persons live together as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:


    the duration of the relationship:


    the nature and extent of common residence:


    whether or not a sexual relationship exists:


    the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:


    the ownership, use, and acquisition of property:


    the degree of mutual commitment to a shared life:


    the care and support of children:


    the performance of household duties:


    the reputation and public aspects of the relationship.


    In determining whether 2 persons live together as a couple,-


    no finding in respect of any of the matters stated in subsection (2), or in respect of any combination of them, is to be regarded as necessary; and


    a Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.

    An example of equity’s operation in the case of same sex relationships is Hamilton v Jurgens [1996] NZFLR 350, cited by the Judge.

  20. The present case is one in which all of the s2D(2) factors, except (g), are pointers to the parties’ living together as a couple for at least the 5-6 year period found by the Judge, even if we were to accept Mr. King’s argument that for the previous decade the relationship was of lesser status.

  21. As a result of our consideration of the facts and arguments in this case (Part 6 below) we have decided that the appropriate course here is to apply the maxim that equity follows the law (Snell’s Equity (30th ed 2000) page 29) and adapt to this de facto partnership the broad approach of the Privy Council in Haldane v Haldane cited at para [5] above, notwithstanding that it concerned the interpretation of a statute dealing with the rights of husband and wife. That does not of course mean that all de facto opposite sex relationships are to be so treated.


  22. In his statement of claim Mr. Church pleaded that from 1982 to June 1986 he and Mr. King lived together at Matipo Street and thereafter at Waimauku until their separation in October 1998. He identified as specific properties to which he made contributions:

    1. Matipo Street and the Waitakere section, which were sold to fund

    2. Waimauku; and also

    3. Red Beach.

    He asserted an expectation to interests in the proceeds of the sales of Matipo Street and Waitakere and in Waimauku and Red Beach.


  23. Rodney Hansen J found that following an initial meeting on 31 December 1982 Mr. Church moved into Mr. King’s house in Matipo Street, Mt Eden, commencing a same sex relationship, in which they lived together as a couple until October 1998 – almost 16 years. Mr. King challenges the Judge’s finding that their relationship was of such length, contending that although the parties were living together and engaged in sexual relations, no de facto relationship that could possibly have legal consequences arose until April 1986.

  24. The Judge found that the direct contributions made by Mr. Church to the Matipo Street and Waitakere properties were modest and expressed doubt that they contributed materially to the sums for which they were sold. He found that after the move to Waimauku there emerged a settled pattern in the relationship which entailed contributions of a direct and indirect nature He recorded


    Mr. Church was mainly responsible for the care of the house and garden at the Waimauku property. He was responsible for rebuilding a deck around the house and building some chicken houses. He assisted with the construction of a shed and helped the contractor who fenced the property. He cared for the livestock which resulted in some savings in food bills. Witnesses called by Mr. King criticised his animal husbandry and general care of the property. My assessment is that in the early years in particular he worked quite diligently but after 1993, when he started working in Mr. King’s businesses, his contributions in this area fell away and in later years he had emotional difficulties (coinciding with, if not caused by the decline in his relations with Mr. King) which significantly reduced his productivity.


    There was no dispute that Mr. Church was almost exclusively responsible for running the house at Waimauku. He cooked the meals and did most of the washing, ironing and other household chores. He also provided services of a domestic nature to Mr. King’s family. This included caring for his mother during the several months of her convalescence from an illness.




    It was submitted that Mr. Church’s commitment to the relationship with Mr. King resulted in his passing up employment opportunities, friendships and financial security. I accept that Mr. Church made some sacrifices, although I am not persuaded that they involved a significant cost to him in material terms. He was forty when he met Mr. King. He had been in regular employment as a machine operator. His assets comprised personal possessions and furniture and household effects. Unlike Mr. King he was not financially ambitious. He had no particular career aspirations. He said he gave up work with Mr. King’s agreement, although it is not suggested that it was at his instigation. There can be little doubt that had Mr. Church not entered into the relationship he would have continued in gainful employment. He may well have accumulated assets but, based on his previous lifestyle, this is not to be assumed.


    Ms Corry contrasted Mr. Church’s contributions with the material benefits derived from the relationship. He was provided with a home, a beach house and a pleasant lifestyle.




    ... The financial contribution [of Mr. Church] was not great but more than negligible and is not diminished because it was mainly derived from the unemployment benefit.


    For a period of five or six years Mr. Church was largely responsible for the running of the property. The contribution he made to the household budget and the domestic services he provided enabled Mr. King to devote his energies to paid employment and to accumulate substantial savings. He said that over the period 1983-93 he was able to save $200,000 from his earnings. He must have been, as he himself said, a "good saver", but in my assessment he would not have done so well were it not for Mr. Church’s support. Effectively, Mr. King was able to leave most matters to do with the Waimauku property in Mr. Church’s hands.


    From 1993 to 1997 when Mr. King owned his own businesses, Mr. Church continued to provide domestic services at Waimauku but devoted most of his energies to working in the business. Neither party was paid a wage. Mr. King said he lived off his savings over this time and apart from the wage paid for a short time to Mr. Church, very little came out of the businesses. I found Mr. King’s evidence unconvincing on this point. I have difficulty accepting that he did not derive benefits from the businesses by drawings and other means over this period. In my assessment, Mr. Church is entitled to credit for his efforts during this time. His income from the benefit helped meet living expenses and I consider his work provided a financial dividend over the life of the businesses. I accept that ultimately they failed and there was a cost to Mr. King which must be taken into account, but I do not see this as detracting from Mr. Church’s efforts over this period. He was supporting the business endeavours of his partner and is entitled to recognition for that.

  25. He concluded


    For Mr. King it was submitted that even if contributions and an expectation were made out, it would be "grossly unfair" if Mr. Church were to receive any interest in Waimauku. A detailed accounting was presented to show that the benefits received by Mr. Church far exceeded the value of his contributions. It was argued that in financial terms Mr. King had suffered as a result of the relationship and any further award would compound the injustice. Included in the assessment of Mr. King’s position was the $200,000 plus which he said he lost as a result of his investment in the businesses. Mr. Church was debited with half of these losses as well as with notional rent and expenses met by Mr. King.


    In my view, it is unrealistic in the situation such as this to quantify costs and benefits by an arithmetical process which seeks to measure benefits and services in dollar terms. On the other hand, it is not simply a matter of doing justice in the round. It is a matter of assessing the value of Mr. Church’s contribution to the property acquired by Mr. King in the course of the relationship, whilst giving proper recognition to the benefits he received.


    The property in which Mr. Church can legitimately claim a share is that built up in the course of the relationship. The Mt Eden and Waitakere properties which were owned by Mr. King when the relationship began should be excluded. The proceeds of sale of those properties were put into Waimauku. From the time of its purchase to the time of separation, it increased in value by some $200,000. That is the interest in Waimauku to which Mr. Church can lay claim.


    I am satisfied that this figure should not be reduced to take into account the $200,000 which Mr. King claims to have lost on his business ventures. The evidence of these losses was not comprehensive. I was not told enough to satisfy me that Mr. King’s net losses after tax and benefits received from the business were that high. But they are, in any event, largely balanced by the $200,000 which Mr. King says he was able to save in the first ten years of the relationship. I think he was materially assisted in achieving those savings by Mr. Church’s contributions. Regardless, I consider that it would be wrong to reduce the potential claim of Mr. Church by losses arising out of business decisions which were made by Mr. King alone.


    The share which Mr. Church can fairly claim to be entitled must be substantially less than 50%. Mr. King owned the assets which formed the basis of the increase in wealth. He provided the financial underpinning which enabled the couple to enjoy a secure and comfortable lifestyle and to enhance their asset base. In my judgment, Mr. Church’s contributions entitle him to a 20% interest in the increase in value of the Waimauku property or $40,000. In fixing this interest I have taken into account the net benefit he derived from an equal share in the Red Beach property. His lesser contribution to the acquisition and maintenance of that property results in a benefit to him which in equity should be set off against his contributions for the purpose of fixing his interest in the Waimauku property.



    I make the declaration that the plaintiff has a 50% interest in the proceeds of sale of the property at Red Beach and that the defendant holds the Waimauku property subject to a trust in favour of the plaintiff in the sum of $40,000.


  26. Ms Bolwell, in a logical and carefully prepared argument, challenged us to review the nature of the parties’ same sex relationship and characterise it as different in principle from those of partners of opposite sexes. She submitted that the application to the present facts of principles evolved in cases considering the position of women has worked injustice to Mr. King. She analysed the financial contributions made to the respective properties by the two partners. She contended that the Judge’s approach erred materially in principle and in fact and took an approach in law that was not open to him.

  27. Mr. Burns submitted that the judgment was correct in all respects.


  28. We accept that in substance Mr. King provided the funds for the Waimauku property. It follows that, apart from such allowance as must be made for Mr. Church’s indirect contributions to which we next refer, he would be entitled to the whole of the $200,000 increase in its value occurring from the time of purchase until the date of separation. We also accept Ms Bolwell’s submission that the bulk of Mr. King’s savings in the first ten years of the relationship was the result of an inheritance of $100,000 and a cash redundancy payment of $40-50,000, not of extra earnings facilitated by Mr. Church’s efforts in the home, so there can be no question of "balancing" such savings against the $200,000 lost by Mr. King as a result of unsuccessful business ventures. Since the Judge’s reasoning at paragraph [32] of his judgment, at a vital stage in his reasoning, was influenced by misapprehension we must review the relevant evidence for ourselves. But having done so we have concluded that the Judge’s overall assessment of a 20% interest in the Waimauku property together with a 50% interest in the Red Beach proceeds of sale was sound.

  29. Ms Bolwell’s argument was founded in principle on the premise that while the Courts have been comfortable in attributing to partners to a heterosexual relationship an expectation of equal sharing, an expectation consistent with current values of New Zealand society, no such expectation can be attributed to same sex partners.

  30. The appellant’s argument was founded in law on a narrow application of Tipping J’s test – that the contribution or service must either of itself assist in the acquisition, improvement or maintenance of the property or its value or by its provision help the other party acquire, improve or maintain the property or its value. So there would be excluded all services that did not themselves add value to the property or release Mr. King or his resources so he could and did do so.

  31. We agree that if that were the test Mr. Church’s claim in relation to Waimauku would fail. But Tipping J went on to emphasise that one must not

    ignore the realities of life and .... put an unreal premium on the way de facto partners allocate responsibilities, financial and otherwise, in their relationship.

    Here the Judge found that for five or six years Mr. Church was largely responsible for the running of the property. He did so to some degree by physical contributions to it. But the really significant contribution is that identified in Haldane v Haldane which we adapt to the present facts

    [Mr. Church’s] performance of ordinary house[hold] duties makes no direct contribution to the acquisition or enhancement in value of the matrimonial home. It is nevertheless an indirect contribution to its retention as an asset within the family: [Mr. King] would otherwise either himself have to perform such domestic duties, to the detriment of activities more immediately profitable financially, or he would have to pay someone else to perform them, to the pro tanto diminution of his assets. To sum up here, [Mr. Church’s] wife’s performance of domestic duties in the matrimonial home [is to be] regarded [in equity] as a contribution to the matrimonial home.

  32. Ms Bolwell’s logical submission is that there is no evidence that Mr. Church’s work in fact allowed Mr. King to earn more; nor is there evidence as to amount of the notional payment to a third party that would be required to compensate Mr. Church for cooking and other household duties. That is true. But we are satisfied that a broader approach is required.

  33. Here there was the very kind of division of family responsibilities that has in the past been common between husband and wife. The law has moved on from a presumption that only financial contributions to a matrimonial home are significant, towards one that the different contributions are complementary and of equal worth. The values that have led to the Relationships Act existed prior to its enactment. The performance of household duties is now taken for granted as warranting recognition on division of property following separation of the parties of a male-female relationship. While New Zealand judge-made law has not gone as far as the Canadian by treating all assets of the parties as components of a "joint family venture", the concept of a "family home" and the value of household duties as a contribution to it has long become deeply seated in the New Zealand values system. It would in our view be contrary to that values system, by which the Court must be guided in developing the common law, to excise from consideration of "contributions to the home" the performance of household duties – whether provided by a female or a male.

  34. Pursuing her economic argument Ms Bolwell emphasised the significant financial benefits conferred by Mr. King on Mr. Church during their relationship. Mr. King calculated them as amounting to over $26,000 between 1983 and 1998. He paid some $7,300 for overseas travel for Mr. Church. He made a cash gift to Mr. Church of nearly $4,000. He spent over $16,000 on a truck for Mr. Church in the unrealised expectation that he would acquire a courier business. He bought Mr. Church a car which Mr. Church sold, keeping the proceeds for himself. In addition Mr. King paid some $58,000 for the parties’ joint benefit. By contrast while Mr. Church bought the parties’ food, Mr. King deposed that he spent the bulk of his money on items unrelated to Mr. King or his property and was able as a result to acquire personal chattels which were retained by him on separation.

  35. Since the case was not and could not have been run, as the Canadian authority might permit, as an enquiry into the respective contributions to a joint family venture, there was rightly no attempt to construct a comprehensive balance sheet of the parties’ contributions to all of the assets of each, or a profit and loss account covering the history of the relationship. There is no general expectation that there will on separation be an audit of such transactions. The common law of New Zealand recognises the reasonable possibility of expectations of each spouse to an interest in the family home. We are satisfied that the expectation that may arise in de facto cases may and does in the present case extend to these partners of the same sex.

  36. That expectation may be affected by evidence of how the parties viewed it. But the Judge rejected Mr. Church’s claim to explicit agreement. Further, the evidence that Mr. Church acknowledged the Waimauku property to be that of Mr. King was, in law, perfectly correct. But such acknowledgements were made during the course of a happy relationship which was contemplated as continuing. Mr. Church had not turned his mind to the deeper question of what he had contributed to the home in the indirect fashion that the law recognises as significant and it is unreal to treat the answer to one question as responding to a very different one.

  37. Equity will also take account in a general way of whether the conferring of any interest, and if so the extent of such interest, is broadly just, in accordance with the maxim that he who seeks equity must do equity: Snell pages 30-31 and 589.

  38. Where property is acquired jointly or in common, as in the case of the Red Beach property, proprietary interests will arise at law and will be recognised in equity which follows and does not override the common law: Snell page 29.

  39. Applying those principles to the present case, we consider that the expectations in relation to Red Beach were different in kind from those in relation to Waimauku.

  40. The Red Beach property was jointly purchased. It did not acquire the status of a matrimonial home. Mr. Church takes a strict legal approach to his right to a half share. We see no reason not to apply such approach consistently in relation to what we consider is to be regarded as an investment and apply the principles that govern the relations of business partners. Mr. King said he contributed $11,000 being half of the original purchase price and further sums totalling $14,800 = $25,880 approximately, and Mr. Church $11,000 in the form of $4,600 cash plus liability to the vendor for the balance of his half share to the property which realised $42,550 on sale. Mr. Church must give credit for 50% of the difference, namely $7,440. On that basis Mr. King should receive $21,275 plus $7,440 equals $28,715 and Mr. Church $21,275 minus $7,440 equals $13,835. That is almost $8,000 less than the Judge’s figure for his share of the Red Beach proceeds.

  41. Waimauku by contrast was the family home of this couple. The Judge’s assessment that Mr. Church should receive a $40,000 interest in a homestead worth $380,000, or 11%, after the period of Mr. Church’s household services was premised on a 50% division of the Red Beach proceeds. No doubt he would have selected a higher percentage had he taken our route in relation to Red Beach.

  42. There is no single right course in assessing and working out the equities in such a case. While our approach makes allowance for the Judge’s slip at para [32] of his judgment, it does not lead to any different ultimate result. We are therefore of opinion that the Judge’s total figure of just over $60,000, or some 14% of the $422,550 total values of Waimauku and Red Beach, was well within the limits of a reasonable appraisal.


  43. For these reasons, while our approach is slightly different from that of the Judge, we are not persuaded that his decision was overall incorrect. The appeal is dismissed with costs of $5,000 to the respondent.


Plimmer v The Mayor of Wellington (1884) 9App Cas 699; South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282; Haldane v Haldane [1976] 2 NZLR 715; Gillies v Keogh [1989] 2 NZLR 327; Lankow v Rose [1995] 1 NZLR 277; Peter v Beblow (1993) 101 DLR (4th) 621; Quilter v Attorney-General [1998] 1 NZLR 523; Erven Warnink v Townend & Sons (Hull) Ltd [1979] AC 731; Quilter v Attorney-General [1998] 1 NZLR 523; Erven Warnink v Townend & Sons (Hull) Ltd [1979] AC 731; Hamilton v Jurgens [1996] NZFLR 350


Matrimonial Property Act 1963: s.6

Relationships Act 2001: s.2D, s.2E

Authors and other references

Snell’s Equity (30th ed 2000)


F B Bolwell (m/s Kiwilegal, Auckland) for Appellant.

D A Burns for Respondent.

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