Austin v Anderson - [2020] NZHC 2170

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-388

[2020] NZHC 2170

UNDER the Property Law Act 2007

IN THE MATTER

of an application under section 339 of the Property Law Act 2007

BETWEEN

HEATHER HELLEN AUSTIN

First Applicant

AND

HAYDEN BACCHUS HAMILTON CLEAVER

Second Applicant

AND

PATRICIA KARENIA ANDERSON

First Respondent

AND

DAWN RUBY COPELAND

Second Respondent

Hearing: (On the papers)

Counsel:

J B Abbott and D M Jackson for Applicants

Judgment:

26 August 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 26 August 2020 at 2.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 26 August 2020

AUSTIN v ANDERSON [2020] NZHC 2170 [26 August 2020]

[1] The applicants seek leave to commence this proceeding by way of originating application. While the application on its cover sheet also refers to seeking directions as to service, none are sought in the application. In any event, as I will discuss below, it is plain who will need to be served with the proceedings if leave is granted.

Context

[2] The proposed proceeding concerns a property at 7A Wherstead Road, Thorrington, Christchurch (the property).

[3] The property is owned by three siblings and the estate of a fourth sibling. The second applicant, Mr Cleaver, is the son and the administrator of the estate of the late Noel Cleaver. The other three parties are the second applicant’s aunts, that is, the sisters of the late Noel Cleaver.

[4] The applicants propose to seek an order under s 339 of the Property Law Act 2007 (the Act) that the property be sold and the proceeds be divided equally, subject to adjustments for outgoings that have been met by the first respondent, and taking into account rental that the first respondent has apparently received for the property.

[5] Leave is required for the use of the originating application procedure because an application under s 339 of the Act is not an application that can be commenced as of right under pt 19 of the High Court Rules 2016. Under r 19.5, the Court may permit a proceeding to be commenced by way of originating application if the Court considers such to be in the interests of justice. The interests of justice means the Court must secure the just, speedy and inexpensive determination of the proceeding when considering an application under r 19.5.1

[6] The second applicant notes the property is of modest value. As I have said, the property is owned in four shares and, at the moment, the evidence is that the property is let to a tenant pursuant to arrangements entered into by the first respondent. The

1 Solar Bright Ltd v Martin [2019] NZHC 300 at [18] and [26].

evidence supports the proposition that the first respondent has been receiving the rental from the property for some time.

[7] The applicants do not expect there will be any real opposition to a sale of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Austin v Anderson

Details

AGLC: Austin v Anderson [2020] NZHC 2170
Case: [2020] NZHC 2170
Decision Date: 26 August 2020

CaseChat Overview and Summary

The case of Austin v Anderson involves an application for leave to commence proceedings under section 339 of the Property Law Act 2007. Heather Hellen Austin and Hayden Bacchus Hamilton Cleaver, the applicants, seek an order to sell a property at 7A Wherstead Road, Thorrington, Christchurch and divide the proceeds equally among the parties. The respondents are Patricia Karenia Anderson, the sister of the late Noel Cleaver, and Dawn Ruby Copeland. The property is owned by three siblings and the estate of a fourth sibling. The applicants aim to sell the property and divide the proceeds equally, subject to adjustments for outgoings and rental income received by the first respondent.

The central legal issue in this case is whether the use of the originating application procedure is appropriate for the applicants' proposed proceedings. The applicants must obtain leave to use this procedure because section 339 applications are not deemed applications that can be commenced as of right. The court must consider whether the use of the originating application is in the interests of justice, which involves ensuring a just, speedy, and inexpensive determination of the proceeding.

Associate Judge Lester granted leave for the applicants to use the originating application procedure. The court determined that there were unlikely to be significant factual issues that would make the use of the originating application inappropriate. Although there might be a need for discovery around the income generated from the property and expenses incurred, it is likely to be limited. The court also found that full pleadings would not be necessary to understand the issues at hand. Consequently, the use of the originating application procedure was deemed appropriate.

Associate Judge Lester granted leave for the applicants to use the originating application procedure, and the court ordered that the named respondents be served with the proceedings. The applicants can now proceed with their proposed proceedings to seek an order for the sale of the property and division of the proceeds.

Orders