Beenen v Beenen - [2020] NZHC 3163

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2019-443-50

[2020] NZHC 3163

IN THE MATTER OF Section 339 of the Property Law Act 2007

BETWEEN

ANGELA BEENEN

Applicant

AND

MARK BEENEN SUZANNE BEENEN

Respondents

Hearing: 23 November 2020

Counsel:

E L Smith for the applicant K Pascoe for the respondents

Judgment:

1 December 2020

JUDGMENT OF CULL J

[1] As this Court has noted, it is not uncommon in family settings for money to be paid without any clear or settled plan as to when and how it will be dealt with in the future,1 though it certainly can lead to problems down the line as has occurred here. This proceeding concerns an application under s 339(1)(a) of the Property Law Act 2007 to resolve a family dispute on the sale of a property and distribution of its proceeds. By the time the matter came on for hearing, the parties had agreed that the property should be listed on the open market and the sole remaining question for this Court is to determine the distribution of net proceeds of sale among the parties.

1 Zhang v Li [2017] NZHC 129 at [16].

BEENEN v BEENEN [2020] NZHC 3163 [1 December 2020]

Background

[2] The applicant, Angela Beenen, and the respondent, Mark Beenen, are siblings. The other respondent is Suzanne Beenen, Mark’s wife. Angela and Mark are the children of Mrs Phyllis Beenen and Mr Murray Beenen, along with Marion Beenen, Ian Beenen and Laurie Beenen. The other three children are not involved in the present proceeding. Phyllis, Murray, Marion and Laurie are all deceased.

[3] The dispute is centred around a family-owned property in Maungaturoto, Northland (the Northland Property). The Northland Property was initially owned by Angela and her husband Paul Nairn. They were going through financial difficulties, and so in 2004 Phyllis, Murray, Marion, Mark and Suzanne purchased the Northland Property as a family. In order to do so, Phyllis, Murray, Marion, Mark and Suzanne sold the original family home, and Mark and Suzanne sold their family home in Hamilton. The Northland Property was then placed in all the families’ names.

[4]In 2007, Angela and Paul raised a mortgage against the Northland Property for

$60,000. It was agreed the loan could be obtained using the Northland Property as security, but it was a personal loan that was to be paid back by Angela. The family group at this time raised a mortgage of $100,000 to build a compliant implement shed, sewage system and develop the woolshed building to accommodate two houses within the one building. Mark and Suzanne say they were the sole contributors to the Northland Property’s mortgage, rates and running costs from 2006 to 2011.

[5] Initially, and certainly from 2011 to 2014, Angela lived on the Northland Property and Mark and Suzanne visited regularly. However, in 2009, there was a large family disagreement and since then, Mark and Suzanne have not visited the Northland Property. Their…

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.

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Details

Case: [2020] NZHC 3163
Decision Date: 1 December 2020

CaseChat Overview and Summary

The case of Beenen v Beenen involved a family dispute over the sale of a property in Maungaturoto, Northland, and the distribution of its proceeds. The applicant, Angela Beenen, and respondents, Mark and Suzanne Beenen, are siblings and co-owners of the property. The main issues before the court were whether a $80,000 payment made by Phyllis, Mark's mother, was a gift or a loan and the appropriate distribution of proceeds from the sale of the property.

The court found that the $80,000 payment was a loan, not a gift, based on the understanding between the parties that Mark and Suzanne had a moral obligation to repay the amount. This decision was made considering the lack of clear or settled plans for repayment, the nature of Phyllis's will, and the absence of gift duty payment. As a result, Mark and Suzanne were to repay the loan from their share of the net proceeds of the sale, divided among the five children, with an adjustment for the $8,000 already paid to Ian.

Regarding the distribution of the settlement monies, the court decided that Mark and Suzanne should receive $9,374.18 as their proportional share of the surplus. The court also ruled that Mark and Suzanne did not need to account to Angela for not contributing to paying the joint mortgage, as they had already paid all the joint mortgage payments and outgoings from 2006 to 2011. Following the sale of the property and the deductions and payments outlined in the court's orders, the balance of the proceeds would be distributed to the parties in their respective proportional shares.

Orders