Bayly v Hicks - [2011] NZHC 920

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2009-488-000547

UNDER the Property Law Act 2007

IN THE MATTER OF an Application for Partition Order

BETWEEN JOCELYN BAYLY Applicant

ANDMARION HICKS JOHN HICKS Respondents

Hearing: 27 - 30 July, 1, 4 & 5 August 2011

Counsel: WGC Templeton for the Applicant
K Glover for the Respondents

Judgment: 19 August 2011 at 4:00 PM

INTERIM RESERVED JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 19 August 2011 at 4.00 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:
WGC Templeton: wgctempleton@xtra.co.nz
K Glover: kglover@shortlandchambers.co.nz

J BAYLY V M HICKS & ANOR HC WHA CIV 2009-488-000547 19 August 2011

[1] The plaintiff, Mrs Bayly (―Jocelyn‖), and the defendant, Mrs Hicks (―Marion‖), are sisters. They have ultimately inherited a coastal farming property 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. Both now wish to partition the property. However, they have been unable to agree on the basis of any partition.

Background

[2] The Bayly family has farmed in the Bay of Islands for many years. The original family farm was known as Wairoa. Jocelyn and Marion’s grandfather purchased Wairoa in 1929. It comprises 516 hectares and it has been successfully developed as a farming property.

[3] Jocelyn and Marion’s late father, Roger Bayly, took over the ownership of Wairoa in 1955. He and another person acquired Paihia in the 1960’s. He subsequently bought out the other owner. Paihia is immediately to the north of Wairoa and it shares a common boundary with Wairoa.

[4] Mr and Mrs Bayly senior had four children: Jocelyn, Marion, another daughter, Alison, and a son, Charles. Alison has Down syndrome and she is confined almost permanently to the Hohepa Home near Napier.

[5] Jocelyn and her husband, also called John, were married in 1981. They initially farmed a property in Matamata. They were invited by the late Mr Bayly to return to Wairoa and take over running that farm and the adjoining farm on Paihia. They agreed to do so and returned to Wairoa in early 1985.

[6] In or about October 1985, Mr Bayly senior was diagnosed with terminal cancer. He died some two months later on 10 December 1985. Prior to his death he organised a family meeting and endeavoured to sort out the family affairs. At the time of his death, the family’s farming interests, either held directly by Mr Bayly senior, or through trusts, comprised Wairoa, Paihia, a development site which was in large part on Wairoa and also to a lesser extent on Paihia, a farm known as the Toko

Farm in Taranaki, and a dairy unit known as The Woods Dairy Farm, also in

Taranaki.

[7] Marion annexed a copy of her father’s will to one of her affidavits. It is a…

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 [2011] NZHC 920
Case: [2011] NZHC 920
Decision Date: 19 August 2011

CaseChat Overview and Summary

The case of Bayly v Hicks concerns a dispute over the partition of a coastal farming property named Paihia, which is owned by Jocelyn Bayly and Marion Hicks. The sisters, who inherited the property, have been unable to agree on the basis of any partition. The court was required to decide on the appropriate partition line and whether a three-lot subdivision would be a fair and reasonable division. The court considered the relevant considerations under the Property Law Act 2007, including the extent of the shares in the property, the nature and location of the property, and the hardship that would be caused to the applicant by the refusal of the order. The court rejected the partition lines proposed by the parties and decided on a three-lot subdivision, which it considered to be fair and reasonable as between the parties. The court appointed independent experts to prepare a modified subdivision plan and reserved any final decision on the appropriate division until the experts' reports were considered.

Orders