Austin v Anderson
[2020] NZHC 2170
•26 August 2020
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 the property, noting that the first respondent in June or July 2015 approached a real estate agent to sell the property. The applicants have no objection to one or other of the parties buying the property themselves so as to avoid the costs of sale.
[8] This is not a situation where one would anticipate there being significant issues in relation to valuation or the method of sale. The property is “as is where is”, the parties having opted to divide between them the EQC payment in relation to the property. While the property is damaged, it remains habitable.
[9] The applicants recognise the first respondent has been paying the rates for the property and accept that such will need to be taken into account in the final division of the sale proceeds. The applicants submit the first respondent will have to account for any rental she has received from the property and that may require discovery, but only to a limited extent. To the extent that the first respondent may have incurred other costs for maintenance and the like, it will be open to her to make those claims which can be properly made by way of affidavit with supporting material.
[10] The applicants have identified an issue that they suspect may be raised by the first respondent and that relates to a claim the first respondent initially made in the Disputes Tribunal (the Tribunal) in late 2014 against the first respondent. The claim the first respondent made related to expenses she claimed she had incurred while the property had been occupied by the parties’ step-father, who had transferred the property into the parties’ names in 1999, albeit the applicants say they did not learn of that transfer until many years later. The first respondent says she incurred expenses, including rates and insurance in relation to the property, going back over an extended period. That claim was dismissed by the Tribunal in a decision that is in the evidence. An application for re-hearing was declined by the Tribunal.
[11] The applicants say it is now not open to the first respondent to seek to re-open that issue in this Court. Certainly, as regards any claim the first respondent might have
against the first applicant in that regard, such a claim would not be permitted as it would be inconsistent with the finding of the Tribunal. There does not seem to have been any suggestion on the material produced to me, that the first respondent would seek to raise such a claim against the other parties, given her claim in the Tribunal was based on the first applicant having agreed to contribute to those historical costs.
[12] It appears to me that there is unlikely to be significant factual issues making the use of the originating application inappropriate. There may be a need for discovery around the income generated from the property and expenses incurred in respect of the property, but such is likely to be limited. The applicants accept there needs to be an adjustment for rates and it is hard to see why there should not be an adjustment for income received from the property.
[13] Accordingly, I am of the view that full pleadings will not be required for the issues to be understood.
[14] Should the Court consider an order for sale appropriate, the need for consequential directions under s 343 of the Act in relation to the mechanism of sale is met, such as to make use of the originating application procedure inappropriate.
[15] I consider it appropriate that the originating application procedure be utilised and leave is granted accordingly.
[16]As to service, beyond the named respondents, no other party need be served.
Associate Judge Lester
Solicitors:
Layburn Hodgins, Christchurch
Copy to counsel:
D M Jackson, Barrister, Christchurch