Atkinson v Poole

[2022] NZHC 2477

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-57

[2022] NZHC 2477

BETWEEN

MICHAEL DAVID ATKINSON

Plaintiff

AND

MARIAN CLARE POOLE

Defendant

Hearing:	14 September 2022
Appearances:	L A Anderson KC for Plaintiff No Appearance for Defendant
Judgment:	28 September 2022

JUDGMENT OF EATON J

This judgment was delivered by me on 28 September 2022 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]                  The plaintiff, Michael Atkinson, seeks orders under the Property Law Act for the sale of a residential property at 134 Aramoana Road, Dunedin (the property) or, alternatively, for the purchase of the plaintiff’s share in the property by the defendant at her option.

[2]                  Proceedings were issued on 10 June 2022 and served  on the  defendant  on 11 July 2022. The defendant, Ms Poole has failed to take any steps in this proceeding.

ATKINSON v POOLE [2022] NZHC 2477 [28 September 2022]

[3]The plaintiff seeks judgment by way of formal proof.

Background

[4]                  Mr Atkinson and Ms Poole married on 6 July 2009. They were residing together in the property described as a family home. The property is owned by the parties as tenants in common in equal shares.   It had previously been owned by     Ms Poole but was transferred to the parties on 11 October 2017 following them entering into a relationship property agreement.

[5]                  That agreement records that Mr Atkinson has contributed funding of at least 50 per cent of the value of the family home for the purpose of renovation or upgrading the property. In his evidence, Mr Atkinson confirms his belief that the transfer of the half interest in the family home was an appropriate reflection of his input. The agreement made no provision for the disposition of the family home in the event of the parties separating.

[6]                  Towards the end of 2021, the parties had discussions as to the future of their relationship. Ms Atkinson was content for them to live together but wanted to live separate lives. This was not acceptable to Mr Atkinson given his desire that they be together as a couple. They agreed to joint counselling.

[7]                  In January 2022, Mr Atkinson travelled to Spain to visit his brother. Whilst in transit at Dubai on his return to New Zealand he received an email from a lawyer employed by Ms Poole advising that their relationship was over and she did not want him to return to the family home.

[8]                  On his return to New Zealand, Mr Atkinson respected Ms Poole’s wishes and has not returned to the family home.

[9]                  Both parties engaged lawyers. Ms Poole indicated that she wished to purchase the family home but was unwilling or unable to pay one half of its value. She has otherwise failed to take any steps to advance resolution of the sale of the property. In the meantime, Mr Atkinson has not had access to the property and believes it will take him three days to remove his possessions. He seeks access to do so.

Analysis

[10]              Ms Poole’s failure to respond to the proceedings or to otherwise take any steps to resolve the current impasse, notwithstanding the fact she has engaged lawyers is unexplained. Nevertheless, I agree with Mr Anderson KC that matters cannot simply be left in abeyance and it is appropriate for orders to be made to achieve a sale of the property either by auction through the Registrar or, at Ms Poole’s election, by her purchase of Mr Atkinson’s share.

[11]              Mr Anderson has helpfully prepared a detailed draft order seeking to embrace the various scenarios. Following the hearing on 14 September 2022 and consideration of the orders made by Gendall J in Li v Wu, Mr Anderson filed an amended draft order.1 That includes an order for fair occupational rental under s 343(f) of the Property Law Act which I accept is appropriately fixed at $460 per week.

[12]              I have considered the terms of the amended draft order filed 15 September 2022 and am satisfied the orders sought are appropriate.

Result

[13]              I grant the application and make orders in accordance with the amended draft order.2

...................................................

Eaton J

Solicitors:

Staley Cardoza Lawyers, Dunedin

Copy to:

Len Anderson KC, Dunedin M C Poole – Defendant

1      Li v Wu [2021] NZHC 2552 [28 September 2021].

2      Grammatical correction at (1)(e)(i) adding “… ‘to’ the Defendant.”