REHU v MOKE [2020] NZHC 254

REHU v MOKE [2020] NZHC 254 [24 February 2020]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2019-409-0080[2020] NZHC 254IN THE MATTER OF an appeal under s 39 of the Property(Relationships) Act 1976BETWEEN MANAIA INIA REHUAppellantAND EDIE CARROL HUNAPO MOKERespondentHearing: 9 and 10 December 2019Counsel: J V Ormsby and A L Bodman for appellantI M Mitchell and A F L Novis for respondentJudgment: 24 February 2020RESERVED JUDGMENT OF DOBSON JContentsThe circumstances of the relationship [3]Financial dealings [14]The Family Court proceedings [20]Were the January-May 2008 payments loans or gifts? [22]Claims to increases in the value of respective residential properties [53]Chattels [63]Claim for unequal division of property [76]Summary [83]Costs [84][1] This judgment deals with an appeal from orders made under the Property(Relationships) Act 1976 (the Act) dealing with various issues between the parties.The judgment under appeal was delivered by Principal Family Court Judge Moran inthe Family Court at Christchurch on 21 January 2019.1[2] A number of the findings that are challenged on appeal are inter-related. Theappeal is a general one to which the principles in Austin, Nichols & Co Inc v StichtingLodestar apply.2 Accordingly, whilst considering what might be an appropriate extentof deference to accord the Judge, given the specialist nature of the jurisdiction and heradvantage in having seen and heard the witnesses, my task is to reach my own view.If I am satisfied that the judgment is wrong on any of the material issues, then I am todetermine the appeal on the basis of my own findings.3The circumstances of the relationship[3] Both parties are mature adults for whom this was not their first seriousrelationship. The appellant (Mr Rehu) is now retired and the respondent (Ms Moke)is an experienced company director who is qualified as an accountant.[4] In late 2007, Mr Rehu had sections of land at Moeraki that he was consideringselling. A third party known to both parties was aware that Ms Moke was looking tobuy coastal land near a marae. The mutual friend made the connection and arrangedfor the two to meet at a Christchurch restaurant. Mr Rehu is more effusive about theirfirst meeting than Ms Moke. He claims that it was "love at first sight" and that heknew immediately that she was the woman he wanted to spend the rest of his life with.[5] Nothing came of Ms Moke's possible interest in the Moeraki section, but shedid invite Mr Rehu to accompany her to a promotional event on 1 December 2007.They spent that night together at Ms Moke's home, which was the start of theirintimate relationship.1 Rehu v Moke [2018] NZFC 339.2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.3 At [5].[6] In January 2008, the couple spent time together in Australia, having travelledthere separately. On Ms Moke's return to Christchurch, she promptly flew toAuckland for business reasons. She was met there by Mr Rehu in a Porsche motorvehicle that he had just purchased. In that same month, she transferred $10,000 toMr Rehu, which he applied to pay the remaining cost of the Porsche.[7] Also during January 2008, the couple travelled together in New Zealand,staying with members of each of their respective families in Hamilton, Rotorua,Ōpōtiki and Tokomaru Bay. A purpose of this trip was for Mr Rehu to travel toWhangara on the east coast to commence the process of being tattooed with hispuhoro. The first session of tattooing lasted for about two weeks and Ms Mokeremained with him as his supporter throughout.[8] At this time, Mr Rehu was employed in and from Singapore on a four weekon, four week off basis. He worked on oil rigs and undertook other assignmentsassociated with the oil drilling business. It was highly paid employment.[9] The parties are at odds as to the extent to which they were together in the firstsix months of 2008. Mr Rehu claims that they lived together whenever he was inNew Zealand. He was not challenged on that in cross-examination during the FamilyCourt hearing. However, Ms Moke claims that she kept her distance somewhat andmaintained her own independent life. She instanced declining Mr Rehu's invitationto his son's 21st birthday party, received when they were together in Australia, on theground that she did not know the boy. They did return together to Whangara in March2008 for Mr Rehu to complete the second session of his puhoro, and on that trip theyagain visited members of their respective families.[10] In April 2008, they rendezvoused in South East Asia whilst Mr Rehu waslocated there for his work and Ms Moke was on a trip that had been planned sincebefore meeting Mr Rehu to visit nieces in Thailand.[11] When they first met, Ms Moke was living in her own mortgage-free propertyin Lyttelton Street, suburban Christchurch. When in Christchurch, Mr Rehu lived inhis property at Omaru Road, Rapaki that was built on Māori land. Mr Rehu contendsthat his property became their home quite soon after they began seeing each other,with the Lyttelton Street house being their "town house". Ms Moke disputes his claimas to the amount of time he spent at her Lyttelton Street property.[12] Ms Moke moved some of her belongings into the Omaru Road property duringthe first six months of 2008 and then relocated the balance of her belongings there inJuly 2008.[13] The parties became engaged during a trip to India in August 2008 and theywere married in August 2010. They separated in October 2014.Financial dealings[14] After the initial $10,000 advance in January 2008 to assist with the purchaseof the Porsche, Ms Moke advanced a further $138,000 to Mr Rehu at the end ofFebruary 2008. It is tolerably clear that this payment was applied by Mr Rehu to payoff a debt owed under a relationship property settlement with a previous partner.[15] At the end of May 2008, Ms Moke made a further payment to Mr Rehu of$202,000. The Judge found that amount was applied to discharge a bank loan thatMr Rehu had previously borrowed.[16] From about the end of July 2008, Mr Rehu transferred at least substantialportions of his salary into an account controlled by Ms Moke and thereafter she hadprime responsibility for the couple's finances until their separation.[17] In June and July 2014, Mr Rehu received three substantial paymentscomprising redundancy and involuntary termination payments, plus the proceeds ofsurrender of a life insurance policy linked with his employment.[18] In terms of their real estate assets, Ms Moke's Lyttelton Street home was atleast partly tenanted for significant periods during the marriage. It was burgled andsuffered significant fire damage in December 2012, which damage was repaired bythe application of proceeds of an insurance policy.[19] During the relationship, substantial renovations were also undertaken atMr Rehu's Omaru Road property.The Family Court proceedings[20] Mr Rehu commenced relationship property proceedings in August 2015, whichtook a little more than three years to come to hearing in the Christchurch Family Court.Determinations were sought on:• the status of the payments totalling $350,000 by Ms Moke to Mr Rehubetween January and May 2008;• the status of the parties' former home at Omaru Road;• the status of insurance pay outs in respect of earthquake damage to theOmaru Road property of $149,849.51;• claims by Mr Rehu to the increase in value of Ms Moke's Lyttelton Streetproperty;• division of family chattels;• the status of payments received by Mr Rehu in connection with terminationof his employment; and• compensation to Ms Moke for Mr Rehu's repayment of a personal debt.[21] Some of these issues do not require consideration on appeal.Were the January-May 2008 payments loans or gifts?[22] Ms Moke claimed repayment of the advances she had made totalling $350,000between January and May 2008. She categorised them as loans, and also soughtinterest on their repayment. Mr Rehu denied liability to repay the amounts,contending that they were contributions to relationship property made after therelationship had commenced. Accordingly, although not entirely decisive, a criticalissue in determining the status of those payments was identifying the date on whichtheir relationship began for the purposes of the Act.[23] Assessments of whether a de facto relationship was in existence at a particularpoint in time are governed by the provisions in s 2D of the Act. The necessary pre-condition that is relevant here is that the two persons have to be living together as acouple, as required by s 2D(1). Subsections (2) and (3) provide guidance in decidingthis issue, in the following terms:(2) In determining whether 2 persons live together as a couple, all thecircumstances of the relationship are to be taken into account,including any of the following matters that are relevant in a particularcase:(a) the duration of the relationship:(b) the nature and extent of common residence:(c) whether or not a sexual relationship exists:(d) the degree of financial dependence or interdependence, andany arrangements for financial support, between the parties:(e) the ownership, use, and acquisition of property:(f) the degree of mutual commitment to a shared life:(g) the care and support of children:(h) the performance of household duties:(i) the reputation and public aspects of the relationship.(3) In determining whether 2 persons live together as a couple,—(a) no finding in respect of any of the matters stated in subsection(2), or in respect of any combination of them, is to be regardedas necessary; and(b) a court is entitled to have regard to such matters, and to attachsuch weight to any matter, as may seem appropriate to thecourt in the circumstances of the case.[24] In this case, the Judge rejected Mr Rehu's claim that it was "love at first sight"and that their de facto relationship commenced from their first meeting in November2007. In working through the indicia, the Judge found that apart from the imminentcommencement of a sexual relationship, none of the relevant circumstances listed ins 2D were adequately present before the end of June 2008.4[25] On the basis that the advances totalling $350,000 were all made prior tocommencement of the de facto relationship, and on the basis that it would "beggarbelief" that a woman in Ms Moke's position would simply make gifts totalling$350,000 to a "new found lover", the Judge decided that the amounts were loans, notgifts.5[26] Whilst Ms Moke claimed interest, the Judge found that there was no evidenceof any agreement that interest would be charged, so the loans were treated as beinginterest-free.6[27] Reviewing the evidence on the characteristics of their developing relationshipin light of the submissions on appeal, the following features are relevant to itscharacterisation:• A relationship of sorts developed quickly after their first meeting. InMr Rehu's case it was very shortly after termination of a previousrelationship, whereas Ms Moke had been on her own for some time.• There was relatively intense courting when other commitments permitted,both in New Zealand and overseas. The evidence suggests Mr Rehu wasmore demonstrative than Ms Moke about a commitment, and was preparedto express himself in somewhat gushy terms.• Very shortly after the commencement of their courting, Ms Moke wasprepared to make very substantial financial advances, without anything inwriting or even orally agreed express terms. There was no credibleevidence of an interest rate being stipulated and agreed. Whilst Mr Rehuenjoyed high earnings, Ms Moke was demonstrating substantial trust inhim by undertaking the financial transactions as she did. Ms Moke is an4 Rehu v Moke, above n 1, at [7] and [16].5 At [22].6 At [29].experienced accountant and business woman who could not claim to havebeen duped by Mr Rehu.• It appears they presented themselves to their respective whānau and othersas being a couple, from an early point when travelling in the North Islandin January 2008. It is, however, difficult to attribute any particular weightto each of them presenting the other to their whānau, because it occurredin circumstances that could have signalled a relationship anywhere on acontinuum from a casual sexual relationship that was going nowhere, to arelationship steadily maturing into one that would qualify as a de factorelationship under the Act.• They did spend a substantial amount of their free time in each other'scompany, subject to the constraints mostly imposed by Mr Rehu's work,but in some instances also by Ms Moke's work commitments. The extentof the time they were apart, for whatever reason, inevitably distinguishesthis from a relationship in which both parties lived under the same roofthroughout the first half of 2008.• The nature of the chattels and personal items relocated by Ms Moke intoMr Rehu's house before July 2008 is not entirely clear, so cannot bedistinguished from the different nature of remaining items she moved intohis house in July 2008. However, in the circumstances of this relationshipthe maintenance of her separate address in Lyttelton Street, apparentlyleaving there all that she needed for day-to-day life, is an indicationinconsistent with their living together as a couple in that period.[28] On 26 November 2019, Mr Rehu's solicitors filed an interlocutory applicationto adduce further evidence on the appeal. That comprised a further affidavit fromMr Rehu addressing a number of factual matters. He sought to produce a Police reportfrom a burglary and fire at Ms Moke's Lyttelton Street property, which recorded hisPorsche having been stored in the garage at the property. He also sought to adduceemail exchanges that confirmed the list of payments made by the insurer of theLyttelton Street property after it had been damaged. The payments totalled more than$250,000.[29] Mr Rehu also deposed to further details of travel in early 2008, intended toadvance his claims as to the extent to which the parties were in each other's companyduring periods overseas. Lastly, the affidavit attached a 2009 tax return for Ms Moke.[30] Ms Moke opposed the admission of the further affidavit on the ground that allof the information had been available to Mr Rehu prior to the Family Court hearing.If Mr Rehu's fresh affidavit was to be admitted, then Ms Moke sought to file a furtheraffidavit responding on the factual matters he had deposed to.[31] I agreed with counsel at the outset of the hearing that I would treat the newevidence as admitted de bene esse, and to review after hearing argument whether itwas appropriately included.[32] I am satisfied there was no prejudice to Ms Moke, subject to having regard toboth updating affidavits, and I have accordingly included their contents in the reviewof the evidence.[33] On one view, the substantial payments by Ms Moke to Mr Rehu so soon afterthey commenced a relationship of any sort suggests a meaningful degree of financialinterdependence, or at least dependence by Mr Rehu on Ms Moke, in circumstanceswhere she trusted him sufficiently to undertake the transactions without any termsagreed in writing, or even orally.[34] Mr Rehu attributed a greater level of cultural significance to Ms Moke'ssupport for him whilst having his puhoro tattooed than she now acknowledges. Atleast from Mr Rehu's perspective, her support for him through that experiencereflected the role of a close companion.[35] Considerable attention focused on an email sent by Mr Rehu to Ms Moke on20 February 2008 whilst he was working somewhere near Singapore. It included: we are going to have a lovely future together as one, this I no [sic] for sure,baby.Thanks for talking with me about that money issue. I was to embarrassed toask ya Thanks for offering to help me, pay Shirley her money, really reallyappreciate it Edie I've got it all covered Edie. Once I sell Moeraki themoney will come back girl Once we get all this sorted, we can save and start putting some funds away forour old age, make investments and I can start sorting all the land out that iswilled to me [36] There was no email response to that email in evidence. Certainly, to the extentit suggested that Ms Moke initiated the prospect of paying money to Mr Rehu,Ms Moke did not take the opportunity to respond to stipulate her understanding thatthe payment was a loan.[37] On the other hand, the reference to "once I sell Moeraki the money will comeback" might suggest acknowledgement by Mr Rehu of the obligation to repay theamount involved.[38] Advances of these significant amounts relatively early in such a relationshipdo signal a commitment by Ms Moke to the relationship. Providing a total of $350,000for Mr Rehu's use would be unlikely to occur in a casual or temporary relationship.The issue is what were the terms on which that commitment was made.[39] The stark distinction in law between a loan and a gift in circumstances such asthe present is potentially inadequate to fully reflect the circumstances, and the impactthose circumstances have on a decision under the Act as to whether this wouldcontribute to a positive finding that the parties were living together as a couple.7[40] The reality is that they were not continuously living together as a couple. Evenif Mr Rehu could establish that they lived together except when his work required himto be out of New Zealand, the developing relationship did not have sufficientcharacteristics to qualify whilst Ms Moke maintained the extent of independent living7 L v P [Division of Property] [2008] NZFLR 401 (HC) at [44].at her Lyttelton Street home in the periods during the first six months of 2008 whenMr Rehu was not in Christchurch.[41] I accordingly agree with the Judge's finding that, in terms of an on-goingrelationship in which Mr Rehu would continue to be absent for work purposes forsignificant periods, the permanence signalled by Ms Moke moving her chattels andpersonal belongings into his home changed the nature of the relationship to one thatqualified under the Act.8 Shortly thereafter, in August 2008, they indicated apermanent commitment to each other by becoming engaged.[42] Although not decisive, the fact that the advances were made prior to the partiesbeing in a de facto relationship for the purposes of the Act does make it more difficultfor Mr Rehu to sustain his claim that the payments were intended to be gifts.[43] Reconstructing all the circumstances of the evolving relationship, the absenceof an agreement that the advances were loans cannot be determinative in making outhis claim. I am satisfied that, if asked at the time of the advances whether he had anobligation to repay them in the event the relationship ended within, say, three or sixmonths, then Mr Rehu could not credibly deny an obligation to repay the amounts hehad received.[44] Conversely, if the marriage had lasted, say, 12 or 15 years during which theparties' assets had been completely intermingled, it is equally unlikely that Ms Mokewould maintain a claim that the advances were loans, retain character as her separateproperty and in respect of which she was still entitled to demand repayment.[45] Seen in this light, it is untenable to characterise the advances as unconditionalgifts. At the time they were made, they were advances for which Ms Moke wasentitled to require repayment, subject to the prospect that, dependent on the positivedevelopment of their relationship and their relationship property, she might elect inthe future not to enforce the obligation.8 O'Shea v Rothstein HC Dunedin CIV-2002- 412-8, 11 August 2003 at [20]; L v P [Division ofProperty], above n 7, at [44]–[46].[46] In the stark terms that the law requires, the outcome must therefore be that theadvances were loans, repayable on demand.[47] Mr Ormsby advanced two further propositions against Mr Rehu being liable torepay the advances made in early 2008:(a) First, that if not gifts, then the payments were "contributions to therelationship". That cannot avail Mr Rehu if the relevant relationshiphad not started when the payments were made.(b) Second, that if there was a contractual debt, then time ran during therelationship so that the Limitation Act 2010 would be a defence to ademand for repayment. However, for advances made on terms that theywere repayable upon demand, time would not begin to run for limitationpurposes until the lender made demand. No limitation issue could arise.[48] In the Family Court, the Judge reasoned that because the loans were made priorto the parties being in a de facto relationship, they did not constitute property to whichthe Act applied. The consequence was that the Court could not make an orderrequiring repayment or take Mr Rehu's liability to make that repayment into accountin settling orders on other assets and liabilities that were found to constituterelationship property.9[49] The Family Court finding that they were loans repayable on demand advancedinterest-free were therefore no more than declaratory of the liability. It wascontemplated that, if necessary, Ms Moke would have to commence separate DistrictCourt proceedings to enforce her claim to repayment of the loans.[50] On argument of the appeal, Mr Ormsby indicated that a determination on thestatus of the advances was sought, even if the same outcome applied by virtue of thetransactions falling outside the scope of relationship property. I can accordingly do nomore than declare Ms Moke's claim for repayment of the $350,000 to be a valid one9 Rehu v Moke, above n 1, at [16].for which, on the state of the evidence in these proceedings, there appears to be nopossible defence.[51] If the Family Court finding of Mr Rehu's liability to repay the $350,000characterised as loans was upheld, then Mr Ormsby's fall-back submission was thatthe extent of that liability should be taken into account in determining the division ofrelationship property. He submitted that the circumstances would then arise for anexception to equal sharing under s 13 of the Act. This was advanced on the basis thatduring the course of their relationship, Mr Rehu had contributed some $1.2 million tothe relationship, contrasted with Ms Moke's income over the same period of $288,000.Such a significant disparity of contribution in a relationship where the finances werecontrolled by Ms Moke was arguably sufficiently extraordinary to make equal sharingof relationship property repugnant to justice.[52] That alternative claim can only be evaluated when all other issues in the appealare resolved.Claims to increases in the value of respective residential properties[53] Substantial monies were spent both on Mr Rehu's Omaru Road property andMs Moke's Lyttelton Street property during the period of their relationship. TheOmaru Road property is on Māori land and the Judge accordingly had no option butto acknowledge that it was excluded from the Court's jurisdiction under s 6 of theAct.10 The judgment recognised that if Ms Moke could make out an interest in thatproperty, it was one that she would have to pursue in the Māori Land Court.[54] That need to bifurcate the fora in which a resolution is achieved is recognisedas extremely frustrating for both parties. On the approach the Judge took in the FamilyCourt, the Lyttelton Street property had been retained by Ms Moke as her separateproperty. The Judge would only have been prepared to entertain a claim by Mr Rehuto an interest in that property, had his Omaru Road property been subject to divisionunder the Act. In that event, the Judge foresaw the prospect that it would be manifestlyunjust not to make an order for compensation in Mr Rehu's favour in respect of10 Rehu v Moke, above n 1, at [30].increase in value of the Lyttelton Street property.11 However, as the Court did not havejurisdiction in respect of Omaru Road, the Judge treated that as an end of any possibleorder in Mr Rehu's favour in relation to Lyttelton Street.[55] In the appeal, Mr Rehu advanced a claim under s 9A of the Act to a half sharein the increase in value of the Lyttelton Street property during the period of therelationship.12 An insurance policy of their combined interests provided cover for theLyttelton Street property and relationship property had been used to pay the premia onthat policy. Claims under that policy were met by the insurer to deal with the damagecaused by the burglary and fire in December 2012. Mr Rehu's most recent affidavitprovided details of payments totalling more than $250,000 that had been expended onthe property. It appears that the majority of those payments were made directly by theinsurer to tradesmen retained to carry out the work.[56] In addition, Mr Rehu claims to have done substantial work by way of painting,gardening and fencing at the property, demonstrating his commitment to it andjustifying an interest in it. Ms Moke disputes the extent to which Mr Rehu worked onthe property. She also disputes the extent of time he claims to have spent working orstaying there.[57] I am not persuaded that the relative extent of physical effort invested byMr Rehu at Lyttelton Street, when taken together with the financial commitment ofrelationship property in funding maintenance and other outgoings, most particularlythe insurance premia, can be reduced to a de minimis extent that precludes his havingan interest in the increase in its value.13 I respectfully adopt a somewhat differentcourse to that taken in the Family Court, but acknowledge that orders on the terms Iconsider appropriate are dependent on there being a consistent approach to Ms Moke'sclaim to an interest in the increase in value in Mr Rehu's property.11 Rehu v Moke, above n 1, at [37]–[38].12 Property (Relationships) Act 1976, s 9A; Rose v Rose [2009] NZSC 46; [2009] 3 NZLR 1 at [24]–[26].13 Property (Relationships) Act 1976, s 9A; Nation v Nation [2005] 3 NZLR 46 at [69]–[71]; Fisheron Matrimonial and Relationship Property (online ed, LexisNexis) at [11.41].[58] The parties recognise that there is currently no clear evidence on the value ofLyttelton Street in mid 2008 when the relationship commenced. Although there arenow records of the extent of monies applied to effect repairs, valuation at the end ofthe relationship is also somewhat unclear.[59] On all the evidence, I consider that there is a compelling case for each party tobe acknowledged as having an interest in the increase in value during the period of therelationship of the properties retained as their separate property, and that interest wouldbe relationship property. However, settling orders in this appeal on that basis isprecluded by the uncertainty of outcome in the Māori Land Court of Ms Moke'sreciprocal claim in relation to the Omaru Road property. On the available evidence asexpanded by counsel, it appears that there may be an increase in the value ofMr Rehu's property of approximately $80,000-$100,000 more than the equivalentincrease in value of Ms Moke's property.[60] In the interests of finality, I would endorse as an appropriate resolutionconsistent with the principles of the Act that each party recognise that the other retainsthat separate property. That would be subject to the reciprocal claims made by eachto the increase in the value of the other's property during the relationship by Mr Rehupaying to Ms Moke a sum in the vicinity of $40,000 to $45,000, being one half of thelikely difference. I urge the parties to accept that a resolution along these lines isinfinitely preferable to further litigation, and would contribute to a cost-effectiveconclusion where the alternative will inevitably incur further substantial costs thatshould be seen as unnecessary.[61] The order I consider appropriate in respect of Lyttelton Street is dependentupon a consistent approach being adopted in relation to the increase in value ofMr Rehu's property. Such an outcome could be achieved consistently with the Act,without resort to s 16.[62] Mr Rehu is accordingly not entitled to enforce any order in relation to theinterest I have recognised, unless and until the position in relation to the increase invalue of the Omaru Road property is resolved consistently with the indication I haveprovided, or other terms acceptable to Ms Moke.Chattels[63] The Family Court judgment dealt with division of the relationship chattels inthe following terms:14[39] Having called evidence on this subject, including that of an expertvaluer, Mr Lowrey, the parties, to their credit, reached the followingagreement:• Of the chattels that had not been valued, Ms Moke may selectwhat she wants and the balance to be either sold, with the proceedsto be equally divided, or given to the local marae. I directaccordingly.• As to the chattels that had been valued, agreement as to value hadbeen reached with the result that Mr Rehu owes Ms Moke$117,950. I direct that he pay her this sum.[64] Mr Rehu challenges those directions on the basis that the Judge erred intreating the parties as having reached agreements to that effect.[65] Claims to a division of family chattels were the subject of submissions filedwith the Family Court after the substantive hearing. The Judge took from Ms Moke'spost-hearing submissions that agreement had been reached on the terms reflected inthe judgment. Further submissions filed with the District Court on Mr Rehu's behalfdisputed that position. On appeal, counsel argued on Mr Rehu's behalf that the ordersin respect of chattels needed to be revisited because they were based on amisunderstanding that agreement had been reached.[66] Beyond that point, the extent of differences between the parties had beenhelpfully narrowed by counsel by the time of the argument on appeal. The partieswere at odds over the treatment, and in a number of cases the valuation, of individualitems including chattels, a range of motor vehicles and the dates on which an overseasbank account maintained by Mr Rehu ought to have been valued by conversion intoNew Zealand dollars. During oral submissions, counsel did their best with whatremained a messy aspect of the dispute.14 Rehu v Moke, above n 1, at [39].[67] Doing the best I can in light of the final position left with me by counsel, thedispute in relation to chattels was relatively confined. After the Family Court hearing,Ms Moke prepared a schedule which adopted the values of all relevant chattels asestablished by a valuation undertaken by McCrostie Valuers of Christchurch, whoMr Rehu had nominated. The schedule may reasonably have given the Judge theimpression that it was agreed. Mr Rehu did not accept the valuation of all items but itwas realistically accepted that on appeal I could not recast the values attributed to anyof the individual items.[68] All the chattels valued totalled $313,825. Mr Rehu conceded that the sum of$3,375 should be excluded for pounamu items treated as taonga belonging to Ms Mokeprior to commencement of the relationship. Accordingly, Mr Rehu contended for totalchattels available for division at $310,450. However, that total included an amount of$8,000 for further items of pounamu which Ms Moke claimed as her separate property,but in respect of which Mr Rehu argued there was no evidence they had been acquiredbefore the commencement of the relationship. It would follow that those items oughtto be included as relationship property. On the evidence as drawn to my attention, Iam satisfied there was sufficient evidence for Ms Moke to make out that claim to theseparate status of the additional items of pounamu. That reduces the total valuation ofchattels to be divided to $302,450.[69] Mr Rehu had maintained an account with HSBC. To the extent that the balanceat the time of separation was relationship property, Mr Rehu valued the account at$423,740. Ms Moke's valuation of the balance in the account was initially $428,361,but at the hearing Ms Mitchell conceded that the conversion rate adopted for Mr Rehuwas the more appropriate one so the amount to be included is $423,740.[70] Working from the "high level analysis" figures provided to me by Mr Rehu'scounsel during the hearing, those adjustments, when other assets are added to thechattels, would reconcile at $815,758.[71] At an earlier point in the dispute, Mr Rehu made an interim distribution of$345,697 to Ms Moke, which he appears to have funded substantially out of the saleof assets and application of cash payments he had received.15[72] Deducting $8,000 for the disputed pounamu items from both the total ofrelationship property and the total of assets listed in Mr Rehu's schedule retained byMs Moke results in an overpayment in her favour once the interim distribution paid toher is taken into account. However, before quantifying that amount, it is necessary totake into account two additional items, the character and quantum of which were notin dispute.[73] Ms Moke accepts that she has received Māori land rentals that were theseparate property of Mr Rehu in the amount of $5,182. On the other side of the ledger,there is no challenge to the Family Court Judge's finding that Mr Rehu applied$16,500 advanced to him by Ms Moke for the purposes of discharging a personal debt.[74] Adapting Mr Rehu's high level analysis discussed during the hearing, theposition to this point is as follows:Total relationship property $815,758Appropriated as to:• Mr Rehu $347,586• Ms Moke (including interim distribution) $468,172[75] Accordingly, Ms Moke has received $120,586 more than Mr Rehu, one half ofwhich is $60,293. That amount is to be adjusted by an increase of $5,182 for the Māoriland rental, less $16,500 being Mr Rehu's obligation to reimburse Ms Moke forfunding of his repayment of a personal debt. The current extent of overpayment onthis basis is accordingly $48,975, which is appropriately treated as a credit owed byMs Moke to Mr Rehu, subject to resolution of the outstanding issues. I decide theoutstanding issues relating to these items on those terms.15 I note that the comparable schedule appended to submissions for Ms Moke included this interimdistribution at the lower amount of $345,303, but from the other evidence it appears the higherfigure contended for Mr Rehu is the more reliable.Claim for unequal division of property[76] Mr Ormsby argued for Mr Rehu that if the Family Court ruling on the status ofMs Moke's $350,000 advances to Mr Rehu in the first half of 2008 was upheld onappeal, then the consequence would be a sufficiently unequal and/or unfair division ofall potential assets as to warrant an order for unequal division of the remainingrelationship property pursuant to s 13 of the Act. In material part, that provision is asfollows:13 Exception to equal sharing(1) If the court considers that there are extraordinary circumstances thatmake equal sharing of property or money under section 11 or section11A or section 11B or section 12 repugnant to justice, the share ofeach spouse or partner in that property or money is to be determinedin accordance with the contribution of each spouse to the marriage [77] An initial difficulty in considering this argument is the uncertainty over thefinal division of relationship property. I have undertaken an analysis of the argumentsavailable on such an application, on the assumption that the competing claims to ashare of the increase in value of the parties' separate properties at Lyttelton Street andOmaru Road are resolved along the lines of my suggestion at [60] above.[78] In asset terms, that would mean that both then retained, free of any claims, theirrespective properties at those addresses at whatever current valuations are appropriate.Mr Rehu will have retained motor vehicles of relatively substantial value, comparedwith the vehicles and chattels allocated as the property of Ms Moke. There is nothingexceptional about such an outcome.[79] Mr Rehu would presumptively be required to discharge the balance of his debtowed for the advances in the first half of 2008 by payment of approximately a further$300,000 after allowing for the credit to him for overpayment in the interimdistribution. The use he made of those advances was substantially to repay debtsincurred prior to meeting Ms Moke.[80] On this argument, the feature of the couple's financial affairs relied on mostheavily by Mr Ormsby was the disproportionate contribution of salary made byMr Rehu relative to Ms Moke's income. Mr Rehu contributed some $1.2 millioncompared with Ms Moke's contribution of $288,000, in a relationship where Ms Moketook control of all their finances during that period. I am satisfied from the evidencethat the parties maintained a relatively high standard of living during the period oftheir relationship, no doubt influenced by the size of Mr Rehu's salary. They bothenjoyed the advantages and trappings that came with the ready availability of incomeand the evidence does not suggest that Mr Rehu was pressured by Ms Moke to spendat a level beyond that which he was comfortable with. In those circumstances, thesubstantial disproportion between his and her contributions to their disposable incomedoes not raise any spectre of repugnancy to justice when dealing with a division ofwhat is relationship property on the usual principles applying under the Act.[81] It may be that Mr Rehu feels aggrieved at the status of the advances he receivedfrom Ms Moke in the first half of 2008 being – at least from his perspective – recastafter the relationship ended. From his perspective, calling up loans that he treated asgifts which contributed to their relationship is unfair to an extent that redress iswarranted by an unequal division of the rest of the property that does fall under theAct or is to be treated consistently with the principles of it.[82] However, those circumstances do not qualify as rendering equal sharingrepugnant to justice under the stringent test required by s 13.16Summary[83] Accordingly, the outcome of the appeal is as follows:(a) I concur with the Family Court judgment that the advances byMs Moke to Mr Rehu in the first half of 2008 should be treated as loans,advanced interest free on demand.(b) The appropriate resolution of the parties' complementary claims toincreases in the value of their separate properties at Lyttelton Street andRapaki ought to be resolved by applying the same formula, namely thatthe other party has a one half interest in the increase in the value of16 Martin v Martin [1979] 1 NZLR 97 (CA) at 111; Browne v Starke [2016] NZFC 7132 at [42]–[43]; Joseph v Johansen (1993) 10 FRNZ 302 (CA) at 107.those properties during the period of the relationship. Given theabsence of jurisdiction to make orders in respect of Mr Rehu's OmaruRoad property, no order in respect of his claim to one half of theincrease in value of Ms Moke's Lyttelton Street property is enforceableunless and until agreement is reached or orders made by the Māori LandCourt on equivalent terms in respect of the Omaru Road property.(c) The remaining disputes in respect of division of chattels are to be dealtwith in the terms outlined in [75] above.(d) There is no case for Mr Rehu to bring a claim for unequal division ofproperty under s 13 of the Act.Costs[84] Neither party addressed costs in their submissions. My provisional view is thatthe appeal has been largely unsuccessful, but unusual aspects about the terms on whichthe dispute was left by the Family Court arguably justified the bringing of the appeal.Subject to the parties sensibly resolving their complementary claims to the increase invalue of their otherwise separate properties, I would be inclined to award Ms Moke amodest portion of scale 2B costs on her opposition to the appeal.[85] I will receive memoranda if necessary, but am not to be taken to encourage anyfurther contests between the parties.Dobson JSolicitors:Cavell Leitch, Christchurch for appellantCunningham Taylor Law, Christchurch for respondent