Barry v Harris

[2025] NZHC 2340

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-833

[2025] NZHC 2340

UNDER

the Property Law Act 2007

IN THE MATTER OF

an application for an order under s 339

BETWEEN

CAMPBELL NICHOLAS BARRY LAURA JANE BARRY

Plaintiffs

AND

ERNEST JOHN HARRIS

First Defendant

DEBRA ANN HARRIS

Second Defendant

Hearing:	25 June 2025
Counsel:	G Dewar and T Moore for Plaintiffs First Defendant in person (via VMR) Second Defendant in person
Judgment:	19 August 2025

JUDGMENT OF GRAU J

What this decision is about

[1]    In 2019 Campbell and Laura Barry bought a property with Laura’s parents, Ernest (John) and Debra Harris, with each couple holding a half share as tenants in common in equal shares.1 According to the Barrys and John, they did so with the common purpose of sharing a permanent home. Debra believes, however, that the Barrys took advantage of her and John. John separated from Debra in 2022. He reached an agreement with Debra that he would buy her share in the property, but she

1      I refer to the parties by their first names in this decision for ease of reference.

BARRY v HARRIS [2025] NZHC 2340 [19 August 2025]

promptly resiled from that agreement. John is now living and working overseas, and Debra is living in a second house that they built on the property. Debra’s relationship with the Barrys has now broken down to the extent that Campbell and Laura ask the Court for an order under s 339 of the Property Law Act 2007 (PLA) to divide the property. In their statement of claim they sought the property to be divided, and the Harrises to sell and transfer title of their 50 per cent share to the Barrys at its current market value. However, they now ask the Court to divide the property on terms where they and John acquire Debra’s quarter share.

[2]    The Barrys ask for an order because of the hardship they say is being caused to them by having to continue to co-own the property with Debra. Debra does not want to sell her share and she does not want to move. She says moving would cause her hardship. She says that the Barrys do not need to see her or have anything to do with her. John supports the Barrys’ application. Although he is named as a defendant in this proceeding, it is apparent that the intention is for him to retain his quarter share in the property.

[3]    The principal question for the Court in this matter is whether the hardship that would be caused to the Barrys if the order was refused would be greater than the hardship caused to Debra if the order was made.

What this decision is not about

[4]    This decision is not about fraud or corruption, unlawful building work or mistreatment of animals. Debra has made these and other allegations. Nor is it about politics, or who did what work on the property, or how people choose to live in their homes. Such matters are only relevant to the extent they demonstrate the total breakdown in the relationship between the Barrys and Debra and the hardship claimed by both sides of this unhappy situation.

The Property Law Act regime

[5]    Section 339 of the PLA provides the Court’s ability to order the division of property owned by co-owners:

(1)A court may make, in respect of property owned by co-owners, an order—

(a)for the sale of the property and the division of the proceeds among the co-owners; or

(b)for division of the property in kind among the co-owners; or

(c)requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.

(2)An order under subsection (1) (and any related order under subsection (4)) may be made—

(a)despite anything to the contrary in the Land Transfer Act 2017; but

(b)only if it does not contravene section 340(1); and

(c)only on an application made and served in the manner required by or under section 341; and

(d)only after having regard to the matters specified in section 342.

(3)Before determining whether to make an order under this section, the court may order the property to be valued and may direct how the cost of the valuation is to be borne.

(4)A court making an order under subsection (1) may, in addition, make a further order specified in section 343.

(5)Unless the court orders otherwise, every co-owner of the property (whether a party to the proceeding or not) is bound by an order under subsection (1) (and by any related order under subsection (4)).

(6)An order under subsection (1)(b) (and any related order under subsection (4) may be registered as an instrument under—

(a)the Land Transfer Act 2017; or

(b)the Deeds Registration Act 1908; or

(c)the Crown Minerals Act 1991.

[6]    The considerations for the Court to take into account in deciding whether to order division are set out in s 342 of the PLA as follows:

A court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:

(a)the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:

(b)the nature and location of the property:

(c)the number of other co-owners and the extent of their shares:

(d)the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:

(e)the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:

(f)any other matters the court considers relevant.

[7]    In Bayly v Hicks, the Court of Appeal found the above provisions set out a “new broad discretionary regime” under which “it is appropriate for a judge to stand back…and consider what, on an overview, taking into account the relevant considerations, is the most just and practical way through the impasse before the court”.2

Background

[8]    Extensive evidence has been filed. There is much dispute about what has happened in this case.

The property

[9]    The parties acquired their interest in the property on 12 April 2019. According to the Barrys and John, the intention was for a permanent home for both couples and to share the costs associated with ownership. In 2018, the Harrises had moved to New Zealand from Australia, settling in Whangarei. They then moved to Wainuiomata to be closer to the Barrys who owned a house there. The Barrys wanted to settle in Wainuiomata where Campbell and his family had always lived.

[10]   After looking at a number of options, the parties chose a 5.1 hectare property. The Harrises moved their caravan onto the property while their own standalone off- grid house was designed and built. The existing home on the property had accommodation upstairs and downstairs. After staying in the caravan for a time, John and Debra then shared the house with Campbell and Laura.

2      Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [32].

[11]   John has explained in considerable detail how the joint purchase of the house was funded. Debra believes that she and John contributed more than Barry and Laura did, which is one of the sources of her grievances. Her belief is correct in one sense, because John and Debra put in a greater cash contribution. They contributed $429,000 in cash, being 50 per cent of the purchase price while Barry and Laura only put in

$279,000 in cash. However, Campbell and Laura contributed the remainder of their equal contribution of $429,000 via a mortgage of $150,000, which was a debt only they were required to service.

[12]   Debra has also suggested that more lending occurred without her participation. However, it is apparent that all four of the parties signed a second loan the Barrys took out to renovate the main house. Again the Barrys were, and are, solely responsible for servicing it.

[13]   Although the Harrises are responsible for a loan of around $174,000, this separate (and earlier) loan had been taken out to fund the building of the Harris’ dwelling and necessary renovations to the existing house. The loan amounted to around $300,000 and $40,000 respectively, and the total cost was shared equally between the parties.

[14]   The renovations of the main house are another aspect of Debra’s grievances. Debra contends that the Barrys have carried out unconsented and unlawful renovations, resulting in what she describes as two “self-contained units” in the main house. Accordingly, Debra believes there are three dwellings on the property. However, the Barrys have provided evidence that demonstrates there were no illegal building works, or third dwelling created. Rather, there were unconsented works carried out on the house before the purchase of the property that the Barrys obtained a retrospective consent for.

[15]   As John has said (and demonstrated), everything worked out as an equal split between the two couples. Debra says he is not telling the truth. When asked at the hearing why he would do so, she said he was controlled by the Barrys. I am unable to accept Debra’s belief that John has not told the truth about the financial arrangements

that relate to the property. Instead, I prefer John’s evidence which is straightforward, logical and is backed up with meticulous record keeping.

[16]   Although I am not required to get to the bottom of all of the matters that have been raised, I have highlighted this issue as an example of how Debra’s views make it difficult, or impossible, for co-ownership to continue. That is because, in future, if the Barrys, and/or John, need or wish to make any alterations to the lending that applies to the property, they would need to seek Debra’s agreement as a co-owner. Laura has deposed that the Barrys wish to complete further renovations that have become necessary due to weather damage, but they cannot do so without Debra’s agreement. In my view, such agreement would be very unlikely or impossible, given Debra’s strongly held belief about the financing of the property, as well as other matters that I will refer to later.

[17]   A CBRE valuation has shown that, as of 15 May 2024, the property’s market value is $1.62 million. Thus, Debra’s share, if the order is made, would be in the region of $400,000 before any lending is accounted for. At the hearing, Debra disputed the valuation, being of the view that the valuer was a friend of Mr Dewar, the Barrys’ lawyer. She also complained that nobody came to her house, and she said an independent valuation was needed. Mr Dewar, however, advised he had never met the valuer. I have no evidence, nor reason, to believe otherwise.

The Harris’ separation

[18]   John and Debra separated in early 2022. John initially lived in the caravan, then he moved into the main house. On 25 October 2022, John filed relationship property proceedings in the Family Court.

[19]   Later that year John reached an agreement with Debra to settle their relationship property, which included him buying her interest in the property, with a memorandum of consent signed by both parties on 1 May 2023. However, two days later, Debra withdrew her consent for such an order. The stated reason was that an amendment to the District Plan was in prospect and that would have a material impact on the ability to develop the property, which may have an impact on its value.

[20]   John says he has made nine separate offers since 2022 to try to resolve his relationship property matters with Debra. He has agreed to a figure for spousal maintenance, and he paid that sum to Debra. An order has been made for disposition of vehicles, chattels and the caravan. The proceeds of the sale of the caravan are in a lawyer’s trust account. Debra has been self-represented since 2023, and the Family Court proceedings show no sign of resolution. John, who is now based overseas, continues to pay his and Debra’s share of the outgoings for the property.

Politics

[21]   Campbell is the Mayor of Lower Hutt. He has been the subject of sustained criticism through social media.

[22]   Allegations of corruption were made against him in 2020 in relation to the purchase of the property. The Serious Fraud Office investigated, and the media reported on the allegations. The allegations were determined to be unfounded, and a media retraction and apology followed.

[23]   However, Debra continues to state that the purchase of the property was “dodgy”. She refers to Campbell as “corrupt”. She also refers to what she says are the “unethical if not unlawful criminal circumstances” in which the property was acquired. She has said she believes the allegations of corruption were true.

[24]   Following Debra and John’s separation, Debra appointed Mr Mark Crofskey as her agent. Mr Crofskey is a political commentator and a vocal opponent of Campbell, and his presence on the property is upsetting to the Barrys. Debra says  Mr Crofskey and his family have supported her, particularly after her cancer diagnosis and ongoing poor health, whereas her own family has abandoned her.

[25]   In mid-2023, an anonymous complaint of ill-treatment of animals was made against the Barrys who keep sheep and rescue llamas at the property. This complaint led to an anonymous request made under the Official Information Act 1982. The Barrys began to see reports of their alleged ill-treatment of animals on social media. The complaint did not lead to any action. MPI inspectors concluded that the animals

had not been mistreated. Debra denies any involvement in this complaint. However, she has also said that if she had been given time, she could have gathered the evidence to show the complaint was very well-founded.

[26]   Another strong opponent of Campbell is Mr Christopher Milne. Debra says she has never met or spoken to him. The Barrys believe otherwise. There are proceedings in the District Court between Campbell and Mr Milne under the Harmful Digital Communications Act 2015 that relate to material Mr Milne has allegedly posted online about Campbell. Debra’s support person in court, Leigh Sutton, is another political opponent of Campbell who is also said to have participated in social media publications about Campbell.

Laura’s relationship with her mother

[27]   Laura has reported that her relationship with her mother deteriorated after her parents separated, with Debra aligning herself with Campbell’s political opponents and posting “malicious comments” on a Lower Hutt community Facebook page. The Barrys also allege Debra was involved in another Facebook page run by Mr Milne in which allegedly defamatory claims were made against Campbell. Laura says her mother has rejected every attempt she has made to reconcile with her. She says the last time she had a substantive conversation with her mother was in August 2022. Since that time communications have continued to be poor. Even very recently, in April 2025, Debra emailed Laura a photograph of a cat which died 10 years ago with an accompanying message saying “Remember when you dumped her at the vets. Broke my heart you cruel assholes”. Notwithstanding the evidence that Laura has attempted to communicate with her mother, including suggesting they go to counselling together, Debra says Laura has not reached out to her and she says Laura has said she would not communicate with Debra unless a counsellor was present.

[28]   The collapse of the mother-daughter relationship has affected Laura significantly. She has sought professional help. Her therapist says Laura began therapy in May 2022 in a highly distressed state, she continues to remain highly distressed and has symptoms of extremely severe depression and severe anxiety. As well, Complex Post Traumatic Stress Disorder is said to fit the symptom profile for

Laura. The therapist’s opinion is that the ongoing relationship with, and behaviour by, Debra has been a strong, if not principal, cause of the conditions she has had to assist Laura with.

[29]   Debra says her relationship with Laura deteriorated well before her separation from John and deteriorated more rapidly when Debra refused to sign documents allowing more debt to be loaded onto the property, after the mortgages had already been altered without her consent. She also says she loves her daughter but she makes many complaints about her daughter’s behaviour, including allegations of making a false complaint to Police and blackmail. Debra says Laura should look closer to home for the cause of her current mental health issues. Debra considers instead that she is the victim of elder abuse. But she also says she can treat her daughter as a neighbour and get on with her life.

[30]   In her written submissions, Debra also agreed the family relationships on which the co-ownership of the property was based are “damaged and irreparable”.

Discussion

Should an order under s 339 be made?

[31]   I have not referred to all of the many matters that have been raised. In my view, what I have described above is amply sufficient to demonstrate that the relationship between the co-owners has irretrievably broken down.

[32]   The principal question for the Court to answer in this case is whether the hardship that would be caused by refusing the order would be greater than the hardship that would be caused to Debra if the order was made. That said, s 342 is clear that the Court must have regard to all of the factors listed in that provision.

[33]   In terms of the extent of the share in the property of the various co-owners, I need to note here that the exact extent of John and Debra’s respective shares of their 50 per cent share of the property would appear properly to be a question for the Family Court in their relationship property proceedings. However, for the purposes of this application, on the evidence presented (although it is disputed by Debra), I consider

that Debra has a minority share of the property, in that she has part (possibly half), but not all, of the half-share that she and John have in the property. This is because both couples each contributed half of the purchase price, with the mortgage arrangements supporting John’s account of an equal split. I have also accepted John’s evidence that Debra’s belief she and John hold more than a half share (as they contributed more to the equity) is based on a misunderstanding of the agreements between the parties when they acquired the property. In my view, the fact Debra holds a minority share weighs in favour of granting the order,3 since she is preventing the parties that hold a greater share of the property from being able to use their capital, as I will go on to discuss.

[34]   In respect of the nature and location of the property, I accept that there is some difference between this case and a case involving a property with a single dwelling on it. This difference, and the large size of the property, being over five hectares, weighs in favour of refusing orders. This is because it limits (to some degree) the impact on the Barrys, who remain able to live in the main house largely without having to interact with Debra. However, they still share a driveway, with Debra having to pass by the Barrys’ house to exit the property. So a degree of interaction remains unavoidable. And I also note here Debra’s recent provision to the Court of CCTV footage of the Barrys that she acknowledges she took from the security camera at their house, which does not belong to her. This is a matter of significant concern, as it suggests a high degree of intrusion into the Barrys’ private affairs.

[35]   In terms of the number of other co-owners and the extent of their shares, this factor clearly supports an order being made, since, as noted above, the three other owners—who for the purposes of this application I have found collectively hold a majority share—are in favour of the order.

[36]   As already noted, the principal issue is hardship. This factor was described in Cunningham v Hart as the “comparative hardship” factor.4 The following helpful discussion of the concept of “hardship” is set out in Holster v Grafton:5

3      See Cunningham v Hart [2024] NZHC 3697 at [29].

4      At [47]–[48].

5      Holster v Grafton (2008) 9 NZCPR 314 (HC).

[50] ‘Hardship’ is a value-laden criterion. It suggests an adverse effect  which is of significant impact to the applicant. It has to be read consistent with the policy of the statute which respects property rights of tenants in common, but seeks to resolve conflicts fairly.

[37]   I accept there would be hardship caused to Debra by the making of an order. Debra does not want to leave her home. She has been and remains unwell following her cancer diagnosis and treatment. She has also pointed to all of the work she has put into the property and says that she gave up everything to be there. She has offered to buy John’s share. She points out that John does not need it, when he is overseas. She says she has been a good wife and mother and says that it is disgusting to be treated like this. She is adamant she is telling the truth and the Barrys (and John) are not. Debra believes that the current position is no different to neighbours living on a large property and sharing a driveway. She says she and the Barrys keep “pretty much” to themselves.

[38]   In addition, Debra has provided a letter from her oncologist dated 13 May 2024. It states that Debra was still receiving therapy at that time and recommends that Debra complete all five years of therapy before she has to experience the stress of moving house. Debra was also reported as being quite unwell and the recommendation was that she avoid the stress of moving “for at least the next six months”.

[39]   Making an order would of course result in Debra having to move out and find alternative accommodation when she does not want to, and when she has significant health issues. That said, the medical evidence Debra has provided to the Court is now over a year old. It is also somewhat inconsistent when it provides five years, and then six months (which has now passed) as a timeframe for avoiding a move. Nor is there any evidence of any features of Debra’s current living circumstances that are designed or modified to address her issues, as compared to any alternative accommodation that may be available to her. Rather, it would appear that continuing to live in an off-grid home that apparently requires a firewood supply for heating, and for which she is reliant on the goodwill of others, is arguably an unsustainable position.

[40]   In contrast, I am of the view that the hardship to the Barrys is clearer if an order is refused. If the status quo remains, the Barrys cannot refinance their mortgage or

obtain further lending. Laura has deposed that, when she started her own law firm, she had to take out a loan from a third-tier lender at higher interest rates than she would be subject to if she had taken out a further mortgage on the property. As already noted, necessary renovations cannot be financed presently.

[41]   I do not accept that the Barrys could have simply asked Debra, and she would have agreed, to them refinancing or obtaining further lending, when her views about their conduct and resistance to anything they suggest appear to be intractable.

[42]   Nor can I accept that the relationship between those living on the property is akin to typical neighbourly tensions, or that tensions have reduced. Recent correspondence, and the actions in relation to the CCTV footage, clearly show otherwise and, as I have said, are of concern. I note here that Debra’s affidavit dated 22 May 2025, which contains the CCTV footage showing the Barrys at their private property, is said to have been provided to counsel for Mr Milne in the ongoing Harmful Digital Communications Act proceeding between Campbell and Mr Milne. That footage should not have been taken from the camera, nor provided to this Court, and it is concerning if it has been provided to someone Campbell is engaged in proceedings with. These matters clearly demonstrate the parties remain in conflict and remain irreconcilable. It also means the Barrys are unable to enjoy the property rights that ownership should bring, such as being able to use their capital or refinance, or even to enjoy their property in a private manner.

[43]   I also consider the conflict between the parties has caused hardship, particularly the hardship caused to Laura which is supported by professional evidence of her counsellor. It is true that making the orders sought would not prevent Debra from making further allegations about the Barrys. However, it will also mean the Barrys will no longer need to worry about persons who have publicly criticised Campbell on social media from being invited onto the property where their private home is. Nor will they need be concerned about people stealing their security camera footage to use against them. As I have said, Debra’s beliefs are intractable, even when they are demonstrably mistaken. Although there does not seem to have been the same level of confrontation between the parties recently as there had been in the past, I do not consider the current relationship breakdown is something that is likely to be

repaired with time. Consequently, I consider this factor weighs strongly in favour of making the orders sought.

[44]   A further relevant consideration is the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property. It seems clear the costs of improvements to the main house, and the construction of the dwelling in which Debra currently lives, were equally shared between the parties. I also accept Debra and John worked on the property. That work is likely to be reflected in its increased value. But I also note that since Debra and John separated, John has been paying both his and Debra’s share of outgoings. This factor accordingly appears to be neutral.

[45]   Lastly, in respect of other matters, it was noted in MacKenzie v Smythe that the need to break a deadlock between co-owners is a fundamental principle underlying the right to partition a property.6 There appears to be no end in sight in this case. Laura has shown evidence of attempts to reconcile with her mother, but to no avail. Debra’s position continues to harden. I accept that the impact of such a deadlock is different here than in a case involving a property with a single residence that all parties are seeking to reside in. But it remains a hurdle to the effective management of the property, with any future maintenance issues likely to be hamstrung by the underlying disputes.

[46]   Based on the above considerations, I consider that an order under s 339 should be made.

What type of order should be made?

[47]   Although, I have found an order should be made, the question arises as to what form the order should take. As noted above, although the initial application was for both John and Debra’s share to be acquired by the Barrys, since John now supports the application, the Barrys now seek an order that they and John acquire Debra’s share of the property. The statement of claim has not, however, been amended to reflect this change.

6      MacKenzie v Smyth [2012] NZHC 1113 at [69].

[48]   The Barrys’ proposal, as set out in Laura’s affidavit, is that, using the 2024 valuation of the property at $1.62 million, Debra’s share of the property should be valued at $318,000. This figure is based on an assumption that Debra has a quarter share, and it is calculated by halving the total value of the property ($810,000), deducting the $174,000 loan that John and Debra are responsible for ($636,000) and then halving that figure. Laura deposes in her affidavit that this calculation maintains the original agreement between the parties that each couple would be responsible for their own lending, and it also results in a larger payout to Debra than if the parties were collectively responsible for the total lending. The latter would result in a quarter share of $267,250, which is $50,750 less.

[49]   Although the above proposal appears sensible, I have concerns about the propriety of making the order now sought, when there are parallel relationship property proceedings between John and Debra in the Family Court. Making a determination that Debra has a quarter-share in the property, and for John to receive his equal quarter-share at market value, arguably has the potential to cut across matters that remain to be determined by the Family Court. I acknowledge there is force in an argument that making the order sought would still align with the presumption of equal division of relationship property under the Property (Relationships) Act. I also note that any adjustments to their respective shares could be made by the Family Court through other property or cash distributions. But making the order sought would also result in a change in the type of property held by John and Debra, with Debra holding cash and John retaining his interest in the property, which may complicate matters.

[50]   However, there are also issues arising from making the original order sought, namely that both John’s and Debra’s share is bought out by the Barrys. There is no suggestion that John has caused, or is causing, hardship to the Barrys by his continued ownership. Accordingly, it is difficult to see how it is appropriate to override his property rights through an order that his share must also be acquired by the Barrys at market value. John also has not had an opportunity to make submissions opposing such an order, given he has participated in these proceedings on the basis that he wants to retain his share in the property. On the other hand, an order that John and Debra’s half-share be acquired by the Barrys, with perhaps the funds paid to John and Debra for their half share being held in an interest-bearing account on trust until their

relationship property dispute was resolved, would ensure the Family Court proceedings are not undermined.

[51]   I note that neither the Barrys nor Debra have addressed these issues about the overlap between the Family Court proceeding and this proceeding. The issue did not occur to me either, before this decision was near to completion. Accordingly, I consider it is appropriate that, before any orders are made, the parties are given an opportunity to be heard on whether, in light of the parallel relationship property proceedings, the Court should make the new order sought that only Debra’s share be purchased by the other co-owners, or whether the Court should make the original order sought that both John and Debra’s share be purchased by the Barrys.

[52]   Additionally, as I see it, there is also an issue as to whether, once the appropriate form of order is determined, the division of the property should be based on the current valuation dated 15 May 2024, or whether a new valuation should be obtained, given the current valuation is now over a year old. The question then arises as to how the costs of that valuation are to be apportioned between the parties. I consider that the parties should also provide their views on this issue.

[53]   Finally, I note that Mr Dewar sought implementation of the order within a reasonable period and suggested two months. I consider that three months is a more reasonable period for what will be a significant and difficult event for Debra. The date by which the order is to be implemented will be fixed once the appropriate form of the order and the appropriate valuation are determined.

Result

[54]   I find that grounds have been made out for an order under s 339(1)(c) of the PLA to be made.

[55]   I direct that, within 10 working days of the date of this judgment, the parties are to file further submissions addressing the issues:

(a)whether the Court should order that only Debra’s quarter share should be purchased by the remaining three co-owners, or whether John and Debra’s half share should be purchased by Laura and Campbell; and

(b)whether the purchase, either of Debra’s share, or Debra’s and John’s share, in the property, should be based on the current market valuation, or a new valuation, and how the costs of any new valuation should be apportioned between the parties.

[56]   The proposed terms of the order are also to be provided to the Court to review and approve.

[57]   The parties have leave to seek any further orders from the Court that are necessary to implement the order.

[58]   Given the Barrys’ application has succeeded, they are entitled to costs. However, I consider the issue of costs should be determined after the issue of the form of the orders to be made is resolved.

Grau J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for Plaintiffs Reids Family Law, Lower Hutt for First Defendant