Browning v Jones - [2020] NZHC 2308

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2020-488-2

[2020] NZHC 2308

BETWEEN
ROBERT BROWNING

Plaintiff

AND

SUSAN ANN JONES

Defendant

Hearing: 7 September 2020 at 2:15pm

Appearances:

Katerina Wendt for the Plaintiff No appearance for the Defendant

Judgment:

7 September 2020

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Palmer Macauley (Rick Palmer), Kerikeri, for the Plaintiff
Copy for:
Katerina Wendt, Richmond Chambers, Auckland, for the plaintiff and
Susan Jones, Waimate North (defendant)

BROWNING v JONES [2020] NZHC 2308 [7 September 2020]

[1] Mr Browning and Ms Jones own a 1.5 hectare residential property at 15 Waikuku Road, Waimate North, as tenants-in-common in unequal shares. She owns 60 per cent; he owns 40 per cent. He lent her the money to buy her share of the property. His loan is secured by a mortgage over the property.

[2]Mr Browning sues Ms Jones on four causes of action:

(a)In the first, he claims repayment of a loan to her, $394,800, default interest under the loan, rent for her exclusive use of his interest in the property, her share of the legal costs on the purchase of the property, her share of the rates that he had paid for the property, and her share of expenses he incurred in repairing and maintaining the property.

(b)In the second, he sues in quantum meruit for his work in rectifying defects and damage in the property.

(c)In the third cause, he seeks the sale of the property under s 339 of the Property Law Act 2007.

(d)In the fourth, as an alternative to the third, he seeks specific performance of an agreement made in 2016 under which the property was to be put on the market and sold.

[3] Mr Browning has applied for summary judgment. He recognises that not all of his claims are suitable for summary judgment. He has applied for summary judgment only for some parts – repayment of the loan and interest on the loan, and the application under s 339 of the Property Law Act 2007 for the sale of the property.

[4] He began this proceeding in January this year, but did not apply for summary judgment until June 2020. Associate Judge Smith gave leave to apply for summary judgment after the start of the proceeding.

[5] At the outset, Ms Jones had legal representation. Later, her lawyers sought leave to withdraw. Their application for leave to withdraw was served on her. She did not oppose. I gather that she may not wish to actively defend the proceeding. She has not appeared today.

[6] Mr Browning has also applied to strike out parts of Ms Jones’ statement of defence. Those parts are affirmative defences to causes of action in which he seeks summary judgment. Accordingly, for this decision, it is more convenient to deal with the summary judgment application and then see whether there are any residual strike- out issues which need addressing.

Facts

[7] Mr…

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 Browning v Jones

Details

AGLC: Browning v Jones [2020] NZHC 2308
Case: [2020] NZHC 2308
Decision Date: 7 September 2020

CaseChat Overview and Summary

Robert Browning sued Susan Jones for repayment of a loan of $394,800, interest, and other expenses. He also sought an order to sell their jointly owned property. The parties are tenants-in-common of a property at 15 Waikuku Road, Waimate North. Browning owns 40 per cent and Jones owns 60 per cent. Browning loaned Jones the money to buy her share of the property, which is secured by a mortgage over the property. Browning applied for summary judgment for repayment of the loan, interest, and for an order to sell the property. Browning and Jones had made an agreement to buy the property in 2007. Jones was to repay the loan by 7 March 2008. Browning applied for summary judgment on the basis that Jones had no defence. Browning claimed that Jones had not made any payments on the loan and had not contributed to expenses on the property. Jones did not appear on the day of the hearing. Browning’s lawyers told the court that Jones had not actively defended the proceeding. Jones had pleaded an affirmative defence of waiver and estoppel but did not provide any evidence to support the defence. Browning submitted that Jones’s inactivity did not amount to a waiver or estoppel. The court agreed with Browning and found that Jones’s defence was not reasonably arguable. The court granted Browning summary judgment for the principal amount of the loan of $394,800. Browning also sought interest under the mortgage agreement, which provided for an 8 per cent interest rate, and a 12 per cent default rate. Browning claimed six years’ interest, which amounted to $284,256. Jones raised a defence of oppressiveness under the Credit Contracts and Consumer Finance Act 2003. Browning submitted that Jones could not raise this defence because the time limit for doing so had expired. The court found that the time limit for bringing a proceeding to reopen a credit contract did not apply to a defence in an enforcement action. However, the court found that Jones’s claim of oppressiveness had been addressed by the time limit for bringing an action for interest. The court granted Browning summary judgment for six years’ interest. Browning also sought an order to sell the property under s 339 of the Property Law Act 2007. The court found that there should be an order for the sale of the property. The court could not give summary judgment on the more detailed mechanisms for the sale of the property and the division of the proceeds. The matter was to be set down for a short hearing in front of a justice. Browning was entitled to costs on his summary judgment application.

Orders