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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA574/2011 [2012] NZCA 589 |
| BETWEEN JOCELYN BAYLY |
| AND MARION HICKS AND JOHN HICKS |
| Hearing: 14 November 2012 |
| Court: Ellen France, Stevens and Asher JJ |
| Counsel: W G C Templeton and R Kaur for Appellant |
| Judgment: 14 December 2012 at 2.30 pm |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellant is to pay the respondents costs for a standard appeal on a Band A basis together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Table of Contents
Para No
Introduction [1]
The lead-up to the hearing [7]
The High Court decision [11]
The appeal [14]
The pleadings [17]
Was there jurisdiction for the Judge to advance the
alternative proposal? [22]
The process followed [34]
Result [47]
Introduction
This is an appeal against an interim decision relating to the division of a property known as “Paihia”. Paihia is a 516 hectare farm property on the coast near Kerikeri in the Bay of Islands. It bounds Onewhero Bay in the east and a number of smaller bays to the north. It is owned as to an undivided one-half share by Jocelyn Bayly, and as to the other one-half share by Mrs Bayly’s sister, Marion Hicks and her husband John as trustees of a family trust. The property is in two titles, but it is common ground that the historical boundary between the two lots does not constitute a fair basis for any division between them.
Paihia is in its position and layout a unique property. It is located approximately five kilometres north of the Waitangi and Paihia townships and 10 kilometres east of Kerikeri. Road access to the farm is via Kerikeri, but there is no direct road access to any of the beaches. The beach at Onewhero Bay is approximately 1.4 kilometres long featuring reddish-gold sand with areas of flat farmland, native woodland, wetland and rolling farmland behind it. The higher land offers panoramic and uninterrupted views over the beach and the Bay of Islands. There is an area in which dotterels nest. The condition of the beach is pristine. It constitutes an excellent swimming and recreational facility and at the moment the public only have access to it by sea. The Judge, who carried out a site visit, described it as a superb beach and one of the finest in the Bay of Islands. It is common ground that in the area behind the beach there are, subject to approvals under the Resource Management Act 1991, prime development sites.
The land to the north comprises a headland. This is relatively gentle country, but as it comes to the sea it slopes steeply downwards to the coast. The headland is intersected by a number of gullies and ridges. The north also has magnificent views over the Kerikeri inlet and the east has views out over the Bay of Islands.…
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- AGLC
- Bayly v Hicks [2012] NZCA 589
- Case
- [2012] NZCA 589
- Decision Date
CaseChat Overview and Summary
The High Court found that the statutory framework provided a broad discretion to the court, which was not limited to the specific requests of the parties. The court emphasised that the discretion provided by s 339(1) was broad and could be exercised based on any relevant factors under s 342, including considerations of hardship. The court noted that the previous legislative framework, which required strict adherence to the requests of the parties, had been replaced by a more flexible approach. The court could, therefore, make an order for sale even if the co-owners had sought division, provided it was justified by the relevant considerations. Furthermore, the court's power to make further orders under s 343 was also broad, allowing for any additional steps deemed necessary or desirable.
The court concluded that the broad discretion provided by the Act allowed it to consider all relevant factors and make orders that were in the best interests of all parties involved, rather than being restricted to the specific requests of the applicants. This interpretation of the Act's provisions enabled the court to act in a manner that was both fair and just, taking into account the overall context of the dispute and the interests of all co-owners. The decision reinforced the notion that the Act was remedial in nature, aimed at providing a flexible and efficient means of resolving disputes over property ownership and division.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As the commentaries observe, much of the case law prior to 2007 focusing as it did on the limited choices available to the court, will now be rendered otiose by the new discretion clearly given by s 339.[9] The previous division between the Partition Acts, which dealt with division between co-owners and the Property Law Act 1952, which related to sales to third parties, has gone. So has the rigid requirement of the past that the court must make orders if the criteria set out in the Acts were proved. This has been replaced by a broad discretion, where the relevant considerations are set out in s 342. The discretionary factors include “any other matters the court considers relevant.”[10] Section 342 provides: [9]George Hinde and others Hinde McMorland & Sim Land Law in New Zealand (looseleaf ed, LexisNexis) at [13.020] and [13.021]; Tom Bennion and others New Zealand Land Law (2nd ed, Brookers, Wellington, 2009) at [6.7.05]; and Land Law (looseleaf ed, Brookers) at [5.7.04(1)]. [10] Property Law Act 2007, s 342(f).342 Relevant considerations 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. It seems unlikely that such a broad list of discretionary powers as expressed in s 339(1) could carry the implicit limitation that such powers could only be exercised on the express request of one particular party. Indeed, Mr Templeton accepted that if so driven by one of the factors in s 342, particularly hardship, the court could make an order for sale although the parties had sought division. So too the court’s power to make further orders is broadly expressed. There is a wide range of discretionary powers in s 343. Section 343(g) at the end of the list of orders that can be made provides that a further order can be made that:(g)provides for, or requires, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under section 339(1). We see nothing in the words of these sections to indicate that the powers of the court are only to make an order for division along the lines of that sought by a party to the proceedings. The narrow jurisdiction of the past, split as it was between the Partition Acts and the 1952 Act is replaced by a broad discretion, limited by s 339(1), but beyond that turning on whatever factor appears to the court to be relevant when the broad range of factors in s 342 and the broad powers in s 343 are considered. There must be an application under s 339, and the boundaries of the discretion are set out in s 339(1). However, there is no requirement that the orders made can only be those that were specifically sought by a party. Such a restriction would unduly cramp the scope and efficient operation of what is clearly remedial legislation.