Barlow v Barlow - [2018] NZHC 2606

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000405

[2018] NZHC 2606

UNDER The Property Law Act 2007

IN THE MATTER

of an application under s 339 of the Act for the sale of property and division of sale proceeds among co-owners and for orders under s 343 of the Act

BETWEEN

QUEENIE BARLOW

First Plaintiff
………………………………………/Contd

AND

RONALD RONGO BARLOW

First Defendant

TREVOR BARLOW
Second Defendant

NIKKI TAI (also known as NIKKI NAU- TUPE BARLOW-TAI)

Third Defendant

Hearing: 22 August 2018

Appearances:

K L Wendt for the Plaintiffs

D J Clark for the Second and Third Defendants (Granted leave to withdraw)

Judgment:

5 October 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 5 October 2018 at 12:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

BARLOW v BARLOW [2018] NZHC 2606 [5 October 2018]

NGA HAU-E-WHA PIRI-WIRI-TUA BARLOW HAPPI

Second Plaintiff

EDWARD TANETI BARLOW

Third Plaintiff

JOSEPHINE NGAWINI

Fourth Plaintiff

BROWNIE PARONE BARLOW

Fifth Plaintiff

BENJAMIN KAHUI BARLOW

Sixth Plaintiff

MATENGA BARLOW
Seventh Plaintiff

WITAKA WILLIAM BARLOW

Eighth Plaintiff

PATRICK TOKO BARLOW

Ninth Plaintiff

[1] This proceeding concerns a residential property situated at 27 Orchard Rise, Papakura. The plaintiffs are nine of the 11 owners. Ten of the owners are siblings. They inherited the property from their parents. The other owner is the executor of the estate of the 11th sibling.

[2] The applicants seek, by way of summary judgment, an order for the sale of the property and supplementary orders under the Property Law Act 2007 (the Act). They also seek orders that the second defendant, Mr Trevor Barlow, pay the outstanding Council rates, which as at 2 November 2017 totalled $45,516.88 as well as reimburse the co-owners for rent between 2005 (the date from which a rental valuation has been provided) and 2017, totalling $219,700 on the basis that he or his family have been in occupation of the property, to the exclusion of the co-owners, since 2003.

[3] The first defendant, Mr Ronald Rongo Barlow, is an 1/11th share owner. He was served with the proceedings on 12 April 2018, but has taken no steps.

[4] The second defendant, Mr Trevor Barlow, is also an 1/11th share owner. He is the only owner who actively opposes the sale of the property. His lawyers filed a notice of opposition and an affidavit in support from him. His lawyers are, however, without instructions and were granted leave to withdraw as solicitor on the record and as counsel at the commencement of this hearing.

[5] The third defendant is Mr Trevor Barlow’s daughter. She is not an owner, but is named as a party to the proceeding because she lives at the property and the plaintiffs are seeking an order from the Court that she vacate the property. Ms Tai has filed a brief affidavit in support of Mr Trevor Barlow’s opposition and confirming his affidavit. There was no appearance…

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 Barlow v Barlow

Details

AGLC: Barlow v Barlow [2018] NZHC 2606
Case: [2018] NZHC 2606
Decision Date: 5 October 2018

CaseChat Overview and Summary

This case involves a residential property located at 27 Orchard Rise, Papakura. Nine of the eleven co-owners of the property, all siblings, have applied for the sale of the property and division of proceeds under the Property Law Act 2007. The applicants also seek orders for the second defendant, Mr Trevor Barlow, to pay outstanding council rates and rent for his occupation of the property since 2003. The first defendant, Mr Ronald Rongo Barlow, has taken no steps, while the second defendant, Mr Trevor Barlow, and the third defendant, Ms Nikki Tai, oppose the sale. Mr Trevor Barlow claims he wishes to purchase the property but needs more time, while he and Ms Tai allege hardship if forced to vacate. The court considered the relevant factors under the Act and concluded that the only possible order was for the sale of the property and division of proceeds among the co-owners. The court also declined to order Mr Trevor Barlow to pay the council rates, which will be paid from the sale proceeds. The court found that Mr Trevor Barlow's hardship claims were unsubstantiated and declined to grant summary judgment for the unpaid rent, reserving leave for the plaintiffs to pursue this claim in an ordinary proceeding.

The court granted the applicants' requests for an order for the sale of the property, granting the first plaintiff, Queenie Barlow, authority to sign necessary contracts and documents for the marketing and sale of the property. The plaintiffs were also granted full possession of the property for the purposes of progressing the marketing and sale. An order was made that Ms Tai or any other family members or friends of the second and third defendants vacate the property immediately. Once the property is sold, Complete Legal, on behalf of the parties, will apply the sale proceeds by reimbursing Queenie Barlow for her costs and expenses, deducting any amounts legally required to be paid in connection with the sale of the property, and distributing a 1/10th share of the sale proceeds to each of the plaintiffs and Mr Ronald Rongo Barlow. Leave was reserved to the plaintiffs to continue their claim against Mr Trevor Barlow for unpaid rent in excess of his share of the sale proceeds as an ordinary proceeding. If they do not wish to pursue their claim in this way, the plaintiffs are to file a notice of discontinuance. Leave was also granted to the parties to seek any further orders reasonably necessary in connection with the orders made in this proceeding.

Orders