Bethell v Bethell - [2015] NZHC 1375

IN THE HIGH COURTOF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-001797 [2015] NZHC 1375

BETWEEN
CHRISTINE ANNE BETHELL

Plaintiff

AND

VICTORIA ELIZABETH BETHELL Defendant / First Counterclaim Plaintiff

MARIA GAEL BETHELL Second Counterclaim Plaintiff

Hearing: 2-4 March 2015

Appearances:

R Thompson and S Park for Plaintiff
S A Grant and B Saldanha for Defendant and Second
Counterclaim Plaintiff

Judgment:

17 June 2015

JUDGMENT OF COURTNEY J

BETHELL v BETHELL [2015] NZHC 1375 [17 June 2015]

Introduction

[1] In my decision dated 20 December 2013 I made an order for specific performance requiring the defendant, Victoria Bethell (Vicky),1 to convey to the plaintiff, Christine Bethell (Chrissie), “4.047 hectares being Lot 1 of CT NA6B/653 as approved for subdivision in the decision of the Waitakere City Council dated
10 May 2007”.2 This order was affirmed by the Court of Appeal3 but has not yet

been complied with because it has now been discovered that the area shown in the subdivision scheme plan as Lot 1 is actually 3.7603 hectares, not 4.047 hectares.

[2] Vicky lodged a survey plan that reflects the original scheme plan for the purposes of obtaining approval for the subdivision of Lot 1. But Chrissie maintains that she is entitled to receive 4.047 hectares and that a title for Lot 1 based on this plan will not comply with the order for specific performance. Chrissie has applied for directions requiring Vicky to take all the steps necessary, at her cost, to transfer Lot 1 of CT NA6B/653 in accordance with a proposed plan that encompasses 4.047 hectares. An order in the terms sought would result in an alteration to the boundaries shown on the current survey plan.

[3] Chrissie also seeks directions regarding gates that she claims Vicky has wrongly removed from Lot 1. Vicky asserts that the gates were chattels, not fixtures, and that she was entitled to remove them.

[4] Vicky opposes the application. She asserts that:

(a) The Court of Appeal held that the area to which Chrissie is entitled is defined by the boundaries shown in the scheme plan and the issue is therefore res judicata in this Court.

(b)Alternatively, the directions sought constitute a variation to the order for specific performance and this Court has no jurisdiction to make
such directions.

1      During the hearing counsel and the parties themselves used the first names by which they are known. For clarity and convenience I do likewise.
2      Bethell v Bethell [2013] NZHC 3492.
3      Bethell v Bethell [2014] NZCA 442.

(c) If orders are made that have the effect of altering the boundaries, the Court should take into account the effect on Vicky and Maria when re- drawing the boundaries.

[5] The order for specific performance also required Maria Bethell to vacate the house located on Lot 1 that she had occupied for some years. Pursuant to an agreement reached with Chrissie in February 2014, Maria was permitted to remain in the house on the condition that she would pay rent and maintain the…

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 Bethell v Bethell

Details

AGLC: Bethell v Bethell [2015] NZHC 1375
Case: [2015] NZHC 1375
Decision Date: 17 June 2015

CaseChat Overview and Summary

In Bethell v Bethell, the plaintiff, Christine Bethell, sought directions to enforce a prior order for specific performance requiring the defendant, Victoria Bethell, to convey a parcel of land to her. The parties were unable to agree on the boundaries of the land. The court found that the order for specific performance required the defendant to convey 4.047 hectares of land to the plaintiff and that the court had jurisdiction to make further directions to ensure compliance with the order. The court rejected arguments that the issue of the land's boundaries was res judicata or that the order for specific performance was limited to the area shown in the scheme plan. The court held that the defendant must take steps to convey the land to the plaintiff, including signing a revised survey plan and preparing a fresh resource consent if required. The court also ordered the defendant to return gates, a water tank, and a wood-burner fireplace that had been removed from the land and ordered the defendant to pay the plaintiff rent for the period during which the defendant occupied the land. The court declined to award increased or indemnity costs.

Orders