Bayly v Hicks - [2015] NZHC 3248

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-488-000547 [2015] NZHC 3248

BETWEEN
J D BAYLY

Applicant

AND

M AND J A HICKS Respondents

Hearing: 30 November and 1 and 2 December 2015

Appearances:

R B Stewart QC and J K Goodall for Applicant
K T Glover for Respondents

Judgment:

16 December 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 16 December 2015 at 4.00pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:……………………………….

Solicitors/counsel:
Stafford Klaassen/ R B Stewart/J K Goodall, Auckland
Paul Gallagher/ K T Glover, Auckland

BAYLY v HICKS [2015] NZHC 3248 [16 December 2015]

Introduction

[1] This judgment follows on from my interim judgment dated 19 August 2011.1

It is to be read together with my interim judgment and with the subsequent judgment of the Court of Appeal.2

[2] Briefly, the applicant, Mrs Bayly (“Jocelyn”), and the defendant, Mrs Hicks (“Marion”), are sisters. I set out the family background in my interim judgment and it is not necessary to repeat that detail. Suffice it to say that Jocelyn and Marion have ultimately inherited a coastal farming property of 431.91 hectares known as Paihia following on from their late father’s death. Jocelyn now holds an undivided one half share in the property and Marion and her husband John, as trustees of a family trust, hold the other undivided one half share. All wish to partition the property pursuant to ss 339-343 of the Property Law Act 2007 (“the Act”).

[3] The parties were unable to agree between themselves on the appropriate basis for partition and in August 2009 Jocelyn filed the current proceedings proposing a particular partition proposal she then favoured. Marion and her husband counterclaimed, initially seeking either a sale under s 339(1)(a) or partition based on an alternative option they favoured. They abandoned the sale option at a very early stage and did not pursue it at the first hearing.

[4] As I explain shortly I rejected both proposals. Paihia has been valued at approximately $24 million. It is common ground that neither sister can afford to buy the other out so an order under s 339(1)(c) is not sought. Both agree that the only practicable option is a division of the property in kind pursuant to s 339(1)(b).

The Interim Judgment

[5] In my interim reserved judgment I had regard to the various considerations detailed in s 342 of the Act. I observed/found as follows:3

1      Bayly v Hicks [2011] NZHC 920, (2011) 13 NZCPR 568
2      Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401.
3      Bayly v Hicks, above n 1, at [38]-[76].

(a) Jocelyn on the one hand and Marion and her husband on the other, have equal half shares in Paihia. That is an important factor and it forms the basis for any partition of the property.

(b) Paihia is a unique property:

(i) It is in a prime coastal location and it offers a number…

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 Bayly v Hicks

Details

AGLC: Bayly v Hicks [2015] NZHC 3248
Case: [2015] NZHC 3248
Decision Date: 16 December 2015

CaseChat Overview and Summary

In the case of Bayly v Hicks, the High Court of New Zealand was tasked with dividing a coastal farming property, Paihia, between Jocelyn Bayly and Marion Hicks, who inherited the property following their father's death. Both sisters sought partition of the property, but could not agree on the appropriate basis for partition. The court had to consider various factors, including the unique features of the property, the contributions made by each party, and the desires of the Far North District Council. The court appointed experts to propose a partition solution, which was subject to approval. The court found that a division based on equal sharing of land types was the most appropriate solution, and rejected Jocelyn's alternative proposal. The court ordered the partition of the property in accordance with the experts' proposal, with certain amendments. The court also made orders regarding access, costs, and other matters. Marion and her husband, as the successful parties, were entitled to an award of costs and their reasonable disbursements.

Orders