Bool v Hammond - [2021] NZHC 2749

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000331

[2021] NZHC 2749

UNDER the Property Law Act 2007

IN THE MATTER

of the sale of a property

BETWEEN

SUSAN ANGELA BOOL

Applicant

AND

NICHOLA ANNE HAMMOND and KERRY DEAN HAMMOND

Respondents

Hearing: On the papers

Counsel:

Z J de Roo for Applicant

Judgment:

14 October 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 14 October 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BOOL v HAMMOND [2021] NZHC 2749 [14 October 2021]

[1] The applicant (Ms Bool), along with her daughter (Mrs Hammond) and son- in-law (Mr Hammond), are registered as tenants in common in unequal shares in a property at Rangiora. Ms Bool intends to make an application under s 339 of the Property Law Act 2007 (the Act) for an order for the sale of the property or, alternatively, that Mr and Mrs Hammond purchase her share at a “fair and reasonable price”. Ms Bool wishes to bring her proceeding by originating application under pt 19 of the High Court Rules 2016. A proceeding under s 339 is not one that the High Court Rules contemplate will be brought under pt 19. Ms Bool applies under r 19.5(1) for an order that the Court permit the proceeding to be brought under pt 19.

Background

[2] In 2010, Ms Bool, Mrs Hammond and Mrs Hammond’s then husband (Mr Purdom), purchased a property at 380 Rangiora-Leithfield Road, Rangiora. Ms Bool contributed $100,000 to the purchase price. Mrs Hammond and Mr Purdom contributed $20,000 and the balance was financed by way of mortgage. The property was registered in their joint names with Ms Bool owning a 7/40th share and Mrs Hammond and Mr Purdom a 33/40th share.

[3] In 2011, the parties entered into a Property Sharing Agreement. It provided that the parties wished to record their respective interests in the property “in full and final settlement of all property claims which each now or hereafter may have against the other”. The parties were allocated an area defined in a plan attached to the Property Sharing Agreement. Ms Bool’s area comprised a granny flat and some surrounding land. It was provided that upon termination of the Property Sharing Agreement or the sale of the property Ms Bool would receive her initial contribution and any increase in value of her allocated area. Mrs Hammond and Mr Purdom were to be responsible for payment of outgoings including rates, insurance and maintenance costs. Ms Bool was to pay her telephone charges and contribute to power. In the event Mrs Hammond and Mr Purdom separated, that would serve as a termination notice under the Agreement in which case there were provisions for the parties to exercise options to acquire the property failing which it was to be sold. There was also provision for disputes or differences arising between the parties to be resolved…

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 Bool v Hammond

Details

AGLC: Bool v Hammond [2021] NZHC 2749
Case: [2021] NZHC 2749
Decision Date: 14 October 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Susan Angela Bool applied for leave to commence an originating application under the High Court Rules for an order for the sale of a property held as tenants in common or, alternatively, for an order that the other co-owners purchase her share at a fair and reasonable price. The application was contested by the other co-owners, Nicola Anne Hammond and Kerry Dean Hammond. The key issue before the Court was whether it was in the interests of justice to permit the proceeding to be brought by originating application under part 19 of the High Court Rules 2016, when the proceeding under the Property Law Act 2007 was not contemplated to be brought under part 19. The Court found that the proceeding was not suitable to be brought by originating application, as it was not straightforward, the issues were not limited, and there were potential for cross-claims and disputes over both factual and legal issues. The Court considered that the proceeding required the discipline of formal pleadings and was likely to involve discovery, interlocutory applications, and cross-examination of witnesses. While the applicant's hardship and the need for a prompt resolution were factors in considering the interests of justice, the Court found that adopting a pared procedure may ultimately prove counter-productive.

The Court refused the application to commence the proceeding by way of originating application under part 19 of the High Court Rules. There was no order as to costs.

Orders