NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV 2024-404-001152
[2024] NZHC 3618	

IN THE MATTER OF	Property Relationship Act 1976	
BETWEEN	JANE DOE
Appellant	
AND	HILLY BILLY
Respondent	

Hearing:	18 September 2024	
Appearances:	Appellant - self-represented Respondent - self-represented	
Judgment:	29 November 2024	

JUDGMENT OF TAHANA J

This judgment was delivered by me on 29 November 2024 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………
Registrar/Deputy Registrar

Copy to: Appellant Respondent

DOE v BILLY [2024] NZHC 3618 [29 November 2024]

Relationship property appeal

[1]	I have anonymised identifying information to protect the privacy of the parties. I will refer to the appellant, as Ms Jane Doe, and the respondent, as Mr Hilly Billy.

[2]	Ms Doe and Mr Billy resided in the same house from September 2015 until April 2020. In February 2023, Ms Doe applied to the Family Court for the division of relationship property. Mr Billy disputed that he had been in a de facto relationship with Ms Doe.

[3]	The Family Court determined that the parties had been in a de facto relationship from December 2015 to July 2018.1 Ms Doe now appeals that decision and argues that the de facto relationship started in July or August 2015 and ended in December 2019 at the earliest. Mr Billy opposes Ms Doe’s appeal.

[4]	The key issue on appeal is therefore when the de facto relationship started and when it ended.

Background

[5]	Much of the factual background was contested. Below is a summary.

[6]	The parties met in person in May 2015 when Ms Doe was living at a property in W.2 Prior to that they had been communicating by phone. The parties dispute the frequency of their phone communication. Ms Doe then moved to C.

[7]	The parties commenced a sexual relationship in July or August 2015 when Ms Doe was living in C. At that time, Mr Billy was living in his home at H (which was owned  by his family trust  (the Trust).   The parties dispute the frequency of   Mr Billy’s visits to Ms Doe at the C property.

[8]	On 9 September 2015, Ms Doe moved into the H property with Mr Billy. The parties dispute the reason for this move. Mr Billy says Ms Doe had been evicted from

1	[Redacted].
2	Place names have been redacted to protect the identity of the parties.

the C property and he agreed she could live with him while she looked for another home. Ms Doe says that Mr Billy invited her to live with him because they were in a relationship. They continued to live together at the H property.

[9]	On 28 August 2017, Mr Billy signed a will which records that it is made in “contemplation of my marriage to Jane Doe”. He also signed a memorandum of wishes recording his wish to appoint Ms Doe as a limited discretionary beneficiary of the Trust.

[10]	On 5 November 2017, Mr Billy and Ms Doe signed a document entitled “certificate of marriage”. Both were aware it was not authentic as no marriage licence had been obtained. There are photographs of the day when the certificate was signed. While living with Mr Billy, Ms Doe was paid for work she undertook for Mr Billy’s business (the company).

[11]	The parties then dispute whether the relationship ended in July 2018. Mr Billy says it ended in July 2018 but that they remained living in the same house. Ms Doe argues that the relationship continued until at least December 2019.

Family Court proceedings

[12]	In late 2019, Ms Doe applied for a without notice protection order against  Mr Billy which was granted by the Family Court on 4 December 2019. That order was made final on 4 March 2020 without opposition from Mr Billy.

[13]	On 21 April 2020, the Family Court granted temporary occupation and ancillary furniture orders directing that Ms Doe was entitled to occupy the H property.

[14]	Ms Doe sought to have the temporary orders remain in place for a further three months and a hearing was held in October 2020. Mr Billy opposed the continuation of the orders. In support of his opposition, Mr Billy provided the Court with an email allegedly sent from Ms Doe’s solicitors (Haigh Lyon) attaching orders that were purportedly made by the High Court confirming a settlement between Ms Doe and her former partner.

[15]	On 17 December 2020, the Family Court discharged the temporary orders with the occupation order to expire on 22 January 2021.

[16]	On 22 January 2021, Ms Doe applied without notice for stay of enforcement of the occupation order alleging that the documents that Mr Billy had provided to the Court were fake. In support of that application, Ms Doe filed evidence from Haigh Lyon confirming that they had not prepared the documents. It is accepted that the documents are fake. The Family Court granted an interim occupation order to protect Ms Doe’s position while her application for rehearing was prepared.

[17]	Mr Billy then obtained a report from computer forensic experts, Datalab Ltd (Datalab). Datalab provided a report dated 12 March 2021 confirming that:

(a)	the documents had been sent from Ms Doe’s email address to Mr Billy’s email address on 17 June 2016; and

(b)	the documents had not been created on Mr Billy’s computer.

[18]	Ms Doe maintains that she did not create the fake documents.

[19]	On 19 May 2021, the Family Court discharged the occupation order.

Decision under appeal

[20]	The Judge set out the relevant provisions of the Property (Relationships) Act 1976 (PRA) as to the definition of a de facto partner and the matters which the Court may take into account in determining whether the parties were in a de facto relationship.3 Those factors and the Judge’s consideration of the law are not contested.

Start of de facto relationship

[21]	The Judge held that the relationship started in late 2015 and not earlier because she rejected Ms Doe’s explanation that Mr Billy had asked her to move in with him. Mr Billy had argued that Ms Doe had been evicted from her C home and he had offered

3	Property (Relationships) Act 1976, s 2D.

for her to stay with him while she looked for another place. The Judge had serious reservations as to the credibility of Ms Doe finding that she had created the fake documents.

[22]	In preferring Mr Billy’s evidence that Ms Doe had been evicted, the Judge considered this was corroborated by the Haigh Lyon evidence that the firm had opened a matter for Ms Doe on 24 September 2015 named “tenancy dispute with [Mike Williams]”.4

[23]	The Judge was satisfied that as months passed after Ms Doe had moved into the H property, that a de facto relationship evolved. Accordingly, the Judge determined that a de facto relationship began in December 2015.5

End of de facto relationship

[24]	The Judge concluded that the de facto relationship ended in July 2018.6 Again, the Judge preferred the evidence of Mr Billy that the relationship had ended in July 2018.

[25]	The Judge relied on emails from Ms Doe to Mr Billy in July 2018 which the Judge considered indicated “no mutual shared commitment, the parties leading separate lives” and Mr Billy no longer being emotionally invested or interested in the relationship.7 The Judge also noted that from July 2018, Ms Doe began formally invoicing Mr Billy for services rendered to Mr Billy’s business and considered these factors as important markers of the end of the relationship.8

[26]	The Judge considered that it was “simply implausible” that the parties’ relationship only ended in April 2020 as by this stage they were barely communicating, there was a final protection order in place, and Ms Doe had sought to have Mr Billy removed by an occupation order in April 2020.9

4	At [53]. The name of the other party to the tenancy dispute has been anonymised.
5	At [90].
6	At [94].
7	At [95].
8	At [96].
9	At [97].

[27]	Overall, the Judge concluded that she found Ms Doe’s evidence in these proceedings to “be wholly lacking in credibility”.10 She determined that the parties were in a de facto relationship from the end of December 2015 to July 2018 at the latest.

Approach on appeal

[28]	The appeal is brought under s 39 of the PRA and is by way of rehearing.11 The Supreme Court’s decision in Austin Nichols & Co Inc v Stichting Lodestar applies.12 The Supreme Court noted the caution required on issues of credibility:13
The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Rangatira Ltd v Commissioner of Inland Revenue.

(footnotes omitted)

[29]	Ms Doe must therefore persuade me that the decision is wrong. Caution is required when considering factual findings based on the credibility of witnesses.

When did the de facto relationship start?

Did the de facto relationship start in July or August 2015?

[30]	Ms Doe argued that the de facto relationship began in July or August 2015 when she was living in C. I reject that submission for the reasons below.

[31]	The parties had only physically met in May 2015. It was only in mid-July or August 2015, that they commenced a sexual relationship. They were not living in a common residence. The fact that Mr Billy visited Ms Doe at her C residence does not indicate that there was a mutual commitment to a shared life. At that time, there was

10	At [98].
11	District Court Act 2016, s 127.
12	Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
13	At [13].

no common residence and they had only known each other for a few months. I am not therefore satisfied that the de facto relationship started in July 2015.

Did the de facto relationship start in September 2015?

[32]	The next issue is whether the de facto relationship started when Ms Doe moved into Mr Billy’s residence in September 2015. The Judge held that it did not because she did not accept Ms Doe’s explanation that Mr Billy had asked her to move in with him. Mr Billy’s evidence was that Ms Doe had told him she had sold her W property and that she had been evicted from the C property so needed a place to stay until she found another property.

[33]	On appeal, Ms Doe submitted that:

There was no sale of my property at W, I certainly did not tell him this, I have documented the fact clearly in every affidavit that I have presented in the Court, that the property was a rental.

[34]	Ms Doe’s affidavit of 20 February 2023 states that she first met Mr Billy “at my home in W.” She states that she had:

… leased the rural property in 2008 ... The W property had been sold in January 2015 and I was beginning to pack up the farm. I had leased another rural property in C and was due to shift into that in June 2015.

[35]	I accept that Ms Doe had leased the W property. Her bank statements for 2014 confirm that she was paying rent. But the issue is whether Ms Doe told Mr Billy the W property was leased or whether she led him to believe she owned that property.

[36]	Ms Doe referred to an affidavit from her mother dated 17 July 2020, which was filed in the occupation order proceedings. Ms Doe’s mother notes that she was helping to pack up the W property in April/May 2015, it “having been sold in the previous January”. At the end of that affidavit, Ms Doe’s mother states “[w]e believed that [Mr Billy] preyed upon [Ms Doe], due to the sale of the W property.” This statement suggests that Ms Doe owned the W property or had told Mr Billy that she owned it. Why would Mr Billy prey on Ms Doe if he knew she was moving from a rental? Ms Doe’s mother’s affidavit supports Mr Billy’s evidence that Ms Doe told him she had sold the property.

[37]	At the appeal hearing, Ms Doe argued that the Judge had erred in finding that she had been evicted from her C residence. Ms Doe submitted that her tenancy dispute related to the W and not the C property. In her written submissions, Ms Doe submitted that Mr Williams was the landlord of the W property and that she had taken him to the Tenancy Tribunal in March 2015 and had been awarded a substantial work order against him. She says that he retaliated and gave her a 90 day notice to vacate, stating the property had been sold. She asserts that she had notice from the Tenancy Tribunal that Mr Williams had lodged a counterclaim against her in September 2015. No documentary evidence was provided of any tenancy dispute in relation to the W property despite Ms Doe’s submissions.

[38]	In her evidence, Ms Doe made no mention of the tenancy dispute in explaining why she had left W in June 2015. Both her evidence and the evidence of her mother was that Ms Doe was leaving W because it had been sold in January 2015. That is prior to March 2015 when Ms Doe allegedly sought a work order in the Tenancy Tribunal against Mr Williams.

[39]	Ms Doe’s affidavit dated 18 October 2023 refers to [Mr Williams] being the owner of the W property or involved with the owner, a company. Ms Doe’s bank statements for 2014 (when she resided at the W property) refer to rental paid to that company.

[40]	Mr Billy in his written submissions refers to the landlord of the C premises as “[K]” or “[D]”.

[41]	The Haigh  Lyon  evidence is  that  the matter was  a tenancy  dispute with  Mr Williams. The contemporaneous documents support Mr Williams being the landlord of the W property and not the C property. That indicates that there was likely a dispute in relation to the W property. It does not however, in the absence of evidence as to the actual tenancy arrangements for C, establish that Mr Billy was wrong in his understanding that she had been evicted from C.

[42]	I do not however, consider that this establishes that Ms Doe is telling the truth when she says Mr Billy invited her to live with him. There is the affidavit of

[Ms Barlow]14 a neighbour of Mr Billy, who says that Ms Doe told her that she had sold a lifestyle property at W to a developer for a large sum of money and she was looking for her dream property and that she would only be at Mr Billy’s home for a short time. That evidence corroborates Mr Billy’s explanation for why she was living with him.

[43]	Ms Doe sought to challenge Ms Barlow’s evidence in her 18 October 2023 affidavit by alleging that she is a “nasty gossip”. That is opinion evidence and is inadmissible. Ms Doe also alleges that Mr Billy asked Ms Barlow to write down what he told her. That too is speculative and not evidence. It is her assertion.

[44]	I consider that the independent evidence of Ms Barlow corroborates the Judge’s finding that Ms Doe moved into Mr Billy’s home on a temporary basis. The evidence of Ms Doe’s mother that Mr Billy preyed on her because of the sale of the W house supports Ms Doe having told him that she had money from that sale.

[45]	The Judge did not consider that Ms Doe was credible and found that she had created fake documents and sent them to Mr Billy. On appeal, Ms Doe attempted to challenge that finding arguing that Mr Billy could have gone on her computer and sent the email with the PDF documents. I reject this submission. The report of Data Lab is that the documents were created in 2016 and were sent from Ms Doe’s email address. It is more likely that Ms Doe would send an email from her own email address than Mr Billy.

[46]	Second, I reject Ms Doe’s submission that Mr Billy created the documents as an insurance policy two days after proposing to her. The fake documents are not an insurance policy against Ms Doe because, as she has proven, she could quickly refute their authenticity because the documents relate to her and her ex-partner. Mr Billy, on the other hand, would not have known the documents were false because unlike Ms Doe, he does not have knowledge of Ms Doe’s true financial position after her separation from her previous partner. Rather, it is more likely that Ms Doe created the fake documents and emailed them to Mr Billy because she wanted him to think she had access to more money than she had.

14	The neighbour’s name has been anonymised.

[47]	I accept that the more plausible explanation is that Ms Doe created and sent the fake documents to Mr Billy in 2016. Ms Doe has not provided any expert evidence to counter the Data Lab report. She asks the Court to speculate and infer that emails sent from her email account were in fact sent by Mr Billy. The evidence overwhelmingly supports her having created the fake documents. The Judge did not err in finding that Ms Doe lacks credibility.

[48]	For the above reasons, I agree with the Judge that the de facto relationship started in December 2015 after the parties had spent some time living together at the H property.

When did the de facto relationship end?

[49]	Ms Doe argued that the Judge erred by:

(a)	finding that Mr Billy was credible in his assertion that the relationship ended in July 2018;

(b)	finding that Ms Doe’s emails in July 2018 and invoices as from July 2018 corroborated the end of the de facto relationship; and

(c)	failing to take into account:

(i)	Ms  Doe’s ongoing involvement in  assisting  to  resolve Mr Billy’s personal financial affairs;

(ii)	Ms Doe’s ongoing relationship with Mr Billy’s mother; and

(iii)	the documentary evidence after July 2018 which Ms Doe argued indicates the de facto relationship had not ended until December 2019.

[50]	I first consider Mr Billy’s credibility and then consider the other grounds raised by Ms Doe.

Credibility of Mr Billy

[51]	The courts have indicated that caution should be exercised by appeal courts on issues of credibility as the appeal court has not had the benefit of seeing a witness give evidence. Here, both Mr Billy and Ms Doe were self-represented so to that extent, the Court was able to observe each of them giving submissions and responding to questions. The Court also had the notes of evidence from the Family Court hearing.

[52]	The notes of evidence indicate that Mr Billy denied the existence of any de facto relationship and that position is clearly not credible. Mr Billy’s response to questions about his will were also evasive. The notes indicate that he tried to resile from what is clearly specified in the will as an intention to marry Ms Doe. I consider that Mr Billy also lacked credibility.

[53]	Where both parties lack credibility, I consider that greater weight should be given to the contemporaneous documents. I therefore consider whether those documents support a de facto relationship continuing after July 2018.

Emails from Ms Doe

[54]	Ms Doe submitted that the Judge was wrong to interpret her 13 and 30 July 2018 emails as indicating the end of the de facto relationship. Ms Doe argued that the relationship continued after July 2018 but was dysfunctional. I accept that the July 2018 emails indicate that by that time, Mr Billy did not have a commitment to a shared life with Ms Doe. The content of the emails is unambiguous:

(a)	13 July 2018:

…

You make it plainly clear, that you have no interest in anything that I do. This is unless it has anything to do with yourself, your business, or your family. I find that incredibly selfish, as that means that our lives totally revolve around yourself.

I feel that it is sad that you have no respect for me, in no matter what I do.

You have always said that if I was not prepared to do your office work, you would have to pay someone. Well, I am sorry but that time has come. Maybe

you may gain some respect for me, by treating me with the respect of your staff.

I have included my 1st invoice for services rendered. I will continue to keep timesheets for you to peruse.

I am very sorry that it has come to this, however you have pushed me to[o] far this time. I will not be abused constantly, as you feel the need. Hopefully you will be able to see this, in the difficult decision, that I have had to make here.

(b)	30 July 2018:

…

I have become very aware that over the past few weeks that you do not consider me family, or worthy. Hence I believe with courtesy, you should pay your accounts as they are presented. This is your normal code of conduct for your subcontractors.

[55]	Whether the above emails indicate an end to the de facto relationship or dysfunction within the relationship needs to be considered in the context of the contemporaneous documents after that date. I first consider Ms Doe’s explanation for her sending the invoices and then the other grounds on which she relies.

Invoices from Ms Doe

[56]	Ms Doe argued that the Judge erred in finding that the invoices in mid-2018 corroborated the end of the relationship. Ms Doe submitted that the invoices were necessary so that she could appear in the Disputes Tribunal (the Tribunal) to assist Mr Billy.

[57]	The contemporaneous documents indicate that the company’s accountants filed a claim against the company in the Tribunal for non-payment of an invoice. There is an email dated 19 July 2018 sent from Ms Doe’s email address but signed off in Mr Billy’s name asking if the Tribunal could allow his partner [Ms Doe], to speak on his behalf. The Tribunal indicated that “[Ms Doe] can represent the company only if [she] is an employee of the company.” There is then an email dated 24 July 2018 sent from [Ms Doe’s email address] purporting to be from Mr Billy to the Tribunal stating that Ms Doe had been the Office Manager for approximately 18 months and requesting she speak on behalf of Mr Billy. The Tribunal responded the following day confirming that Ms Doe could represent the company.

[58]	Ms Doe sent her invoice to Mr Billy before the Tribunal indicated that only an employee could represent the company. The reason for the invoice was not therefore connected to the Tribunal dispute. Further, there is no evidence that the Tribunal requested invoices to establish Ms Doe’s employment and if it did, based on the email, it would have requested 18 months of invoices. I do not accept Ms Doe’s explanation as to why she started sending invoices in July 2018. The more likely explanation is as set out in the email dated 13 July 2018 where she states that she has included her first invoice for services rendered so that Mr Billy would start respecting her.

[59]	Ms Doe then argued that the fact she continued to help Mr Billy with his personal financial issues indicates that they were in a de facto relationship.

Ongoing assistance with financial matters

[60]	The contemporaneous records indicate that in 2019, Ms Doe corresponded with the ANZ bank who approved a $190,000 personal loan to Mr Billy. That was secured against the H property. Ms Doe also sent correspondence about that loan to Mr Billy’s solicitors. The loan was necessary so that Mr Billy could repay monies borrowed from his solicitor.

[61]	Ms Doe argued that Mr Billy is not credible because he has been in financial difficulty and referred to proceedings by the Inland Revenue Department (IRD) against Mr Billy for non-payment of tax, claims by his ex-wife for non-payment of monies, claims by the Auckland Council for non-payment of rates and non-payment of invoices from the Accident Compensation Corporation.

[62]	Mr Billy did not deny his financial troubles. The documents indicate that he had debts owing and arrangements had to be put in place to deal with his financial problems. Ms Doe assisted Mr Billy in that regard. Mr Billy does not deny that assistance, but points to the evidence of Ms Doe being paid for her time. A de facto partner would not ordinarily be paid for time spent helping their partner with personal financial issues. The fact that Ms Doe was being paid counts against the de facto relationship continuing in the absence of evidence that Mr Billy had a commitment to sharing his life with Ms Doe.

[63]	While Ms Doe may have intended to continue their relationship, her emails to Mr Billy in July 2018 indicate that he did not share that intention. He did, however, wish for her to provide services to assist with his financial issues and he paid her for that time until she took steps to obtain a protection order against him.

Ongoing contact with Mr Billy’s mother

[64]	There is a document dated 26 September 2018 indicating that Ms Doe attended a family meeting about Mr Billy’s mother’s health, and she is recorded as a family member. While I accept that indicates that she continued to have a relationship with Mr Billy’s mother, it does not evidence a commitment on Mr Billy’s part to a relationship with Ms Doe.

Emails from Mr Billy to Ms Doe after July 2018

[65]	There are emails after July 2018 from Mr Billy’s email address to Ms Doe. Mr Billy would forward emails to Ms Doe with little, or no, text. The Judge accepted Mr Billy’s explanation that he used “XOX” because he wanted to keep the peace with Ms Doe. Those emails indicate that Mr Billy forwarded emails to Ms Doe about; the energy bill for the H property; attending social functions for Rotary; Rotary newsletters; correspondence from an eye doctor; wealth protection newsletters; IRD correspondence; and property information from a real estate agent. The emails do not contain evidence of Mr Billy’s intentions, but they do corroborate Ms Doe still being involved in aspects of Mr Billy’s life, including his attendance at social functions for Rotary.

Overall conclusion

[66]	Ms Doe has not persuaded me that the Judge was wrong to find that the de facto relationship had ended in July 2018. While the parties had a common residence, there was limited to no mutual commitment to a shared life. Any public aspects to the relationship appear to be limited to attending a couple of Rotary functions. Whether there was a sexual relationship is disputed and I consider both parties lack credibility in that regard, so I do not make any finding in that regard. While Ms Doe provided

ongoing support for Mr Billy and his financial issues, she was being remunerated for her time which indicates that the relationship was not personal.

[67]	I agree with the Judge’s findings as to Ms Doe’s lack of credibility. The evidence indicates that it is more likely than not that she (and not Mr Billy) fabricated the May 2016 documents. They came from her email address. Ms Doe has not adduced any expert evidence to refute the findings in the Data Lab report that the documents were created in 2016 and then sent from her email address. Her explanation as to why Mr Billy created the documents is implausible. The documents are not an insurance policy for Mr Billy. The documents are  about  Ms  Doe so  if Mr Billy created them, it would have been obvious to him that Ms Doe would be able to quickly refute their accuracy. The more plausible (and obvious) explanation is that Ms Doe fabricated the documents to mislead Mr Billy about her financial position.

[68]	While I consider that Mr Billy also lacked credibility, I agree that the contemporaneous documents are consistent with Mr Billy no longer having a commitment to a shared life with Ms Doe as from July 2018. His intentions are captured in Ms Doe’s emails in July 2018. There are no subsequent emails indicating that those intentions had changed. While he continued to forward Ms Doe emails, those emails do not establish a commitment to a shared life with her. The fact that he paid her invoices for helping him with his financial issues (both personal and for the company) indicate that he did not consider that the relationship was personal.

[69]	Ms Doe has not persuaded me that the Judge erred in finding that the de facto relationship ended in July 2018.

Result

[70]	For the reasons above, the appeal is dismissed.

Tahana J