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Bunyan v Parish

Bunyan v Parish

Case [2016] NZHC 2225 20 September 2016

Admissibility of Evidence

Property Law

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-019-994 [2016] NZHC 2225

BETWEEN
MARIE ZELMA BUNYAN AND

BELINDA VAN ESCH as executors of the estate of KAREN MARIE BUNYAN (Deceased)

Applicants

AND

DONNA MARIE PARISH Respondent

Hearing:
3 August 2016

Further submission 9 and 16 September 2016

Appearances:

S McKenna for the Applicant
J Niemand, Counsel to assist the Court

Judgment:

20 September 2016

JUDGMENT OF MUIR J

This judgment was delivered by me on Tuesday 20 September 2016. At 4.30 pm
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………

Counsel/Solicitors:
S McKenna, Grantham Law, Hamilton
J Niemand, Peebles Hoult, Hamilton

BUNYAN v PARISH [2016] NZHC 2225 [20 September 2016]

Introduction

[1] The estate of the late Karen Marie Bunyan owns a Hamilton property as tenant in common in equal shares with the defendant (formerly known as Donna Parish but now as Daniel Nova). Mr Nova was Ms Bunyan’s former partner. They have been separated for 20 years during which time Mr Nova has neither lived in nor contributed to the property. The estate seeks orders in relation to the property under ss 339 and 343 of the Property Law Act 2007 (PLA).

Factual background

[2] In September 1990 Ms Bunyan and her then partner Ms Vanessa Whittingham purchased a 1950’s bungalow at 67 Mardon Road, Enderley, Hamilton, as tenants in common in equal shares.

[3] That relationship came to an end in 1994. In the same year Ms Bunyan entered into a new relationship with the defendant. At that point Ms Whittingham’s equity in the property and related chattels was approximately $25,000. In order to finance a settlement with her, additional bank borrowings were required, taking total borrowings secured against the property to $69,000 at a time when the registered valuation of the property was according to bank records $92,000.1

[4] In an affidavit filed prior to her death, Ms Bunyan deposes that her income as the recipient of an invalid’s benefit was insufficient to sustain the additional borrowing but that, with the inclusion of what she describes as “board payments” from her new partner relevant lending criteria were met.

[5] That is not, however, how the transaction was structured either as between Ms Bunyan and Mr Nova, or the parties and Trustbank (which provided the refinancing facility). Rather, Ms Bunyan and Mr Nova entered into a joint application for loan finance, identifying their relationship as “tenants in common” and their combined income, including for the provision of foster parent services, as
$602 per week.

1 A retrospective valuation at the same date obtained for the purposes of the proceedings identifies
the property’s value as $88,000 as at 1 September 1994.

[6] That application was approved and on 13 September 1994 simultaneous transfers were effected by Ms Whittingham, who transferred her half share as tenant in common in the property to Ms Bunyan, and by Ms Bunyan who transferred the property to herself and Ms Parish (as she was then known), as joint tenants.…

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 Bunyan v Parish

Details

AGLC: Bunyan v Parish [2016] NZHC 2225
Case: [2016] NZHC 2225
Decision Date: 20 September 2016

CaseChat Overview and Summary

This case involved an application by the estate of Karen Marie Bunyan to the High Court of New Zealand, seeking orders in relation to a Hamilton property that she owned jointly with Donna Marie Parish (now Daniel Nova). The applicants sought orders under sections 339 and 343 of the Property Law Act 2007, seeking either a sale of the property with division of the proceeds or an order for one party to purchase the share of the other at a fair and reasonable price. The applicants also sought compensating payments to reflect the absence of contribution to the property by Nova for approximately 20 years and non-payment of any occupation rent in relation to his half share for the same period.

The court considered the legal framework provided by the Property Law Act 2007 and relevant principles from the common law and case law. The court found that an order under section 339(1)(c) was appropriate and that compensating payments should be made to reflect the absence of contribution to the property by Nova and non-payment of any occupation rent in relation to his half share.

The court ordered that the applicants purchase the respondent's share of the property for a sum calculated by reference to a specified formula. The court also established a process for determining the value of the property and outlined the priority of sums to be deducted from the amount payable to the respondent. The court reserved leave to the parties to apply for any further or additional orders necessary to give effect to the judgment and set a timetable for the filing of costs memoranda.

Orders