Burdett v Willis
[2024] NZHC 277
•26 February 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2023-463-98
[2024] NZHC 277
UNDER The Property Law Act 2007 IN THE MATTER OF
an application for summary judgment and for orders for sale of property and division of proceeds among co-owners
BETWEEN
KIM MARY JEAN BURDETT
and
SHANE WHITBY BURDETT
ApplicantsAND
RICKI ALBERT JAMES WILLIS
Respondent
Hearing: 7 February 2024 Appearances:
Thomas R Mounsey for the Applicants No appearance for the Respondent
Judgment:
26 February 2024
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Application for summary judgment and for order for sale of property]
This judgment was delivered by me on 26 February 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………. Registrar/Deputy Registrar
Solicitors:
MMC Law Limited (Thomas R Mounsey/Amber Rainford), Taupo, for Applicants
Copy for:
Ricki Albert James Willis (the Respondent)
BURDETT v WILLIS [2024] NZHC 277 [26 February 2024]
TABLE OF CONTENTS
Paragraph
Introduction [1]
Background [2]
Mr and Mrs Burdett’s application for summary judgment [7]
Affidavit of Kim Mary Jean Burdett dated 13 December 2023 [10]
Legal principles [21]
Property Law Act 2007 [24]
Analysis [28]
Co-owners [30]
Criteria in s 342 of the P L A [33]
Section 342(a) – Extent of shares in the property [34]
Section 342(b) – Nature and location of the property [35]
Hardship [37]
Contributions to improvements or maintenance [38]
Other matters the Court considers relevant [39]
Section 343 factors [40]
Vacant possession [46]
Result [47]
Orders [49]
Costs [50]
Introduction
[1] Mr Shane Burdett and Mrs Kim Burdett (Mr and Mrs Burdett) seek summary judgment against Mr Ricki Willis (Mr Willis) on an application he vacates a property and for its subsequent sale and division of proceeds.
Background
[2] Mr and Mrs Burdett are co-owners as joint tenants of 1/195 Taharepa Road, Taupō (the property). Mr Willis is Mrs Burdett’s brother.
[3] The property was transferred to Mr and Mrs Burdett following the death of Mrs Burdett’s parents in 2013, who were the previous registered owners of the property as joint tenants.
[4]Mr and Mrs Burdett wish to sell the property.
[5] On 20 July 2023, Mr Willis lodged a caveat on the property, under s 138 of the Land Transfer Act 2017, on the basis that Mr and Mrs Burdett hold a half share of the property for him on constructive trust.
[6] In this application, Mr and Mrs Burdett now seek orders from the Court ordering Mr Willis vacate the property and enabling them to sell the property and divide the proceeds.
Mr and Mrs Burdett’s application for summary judgment
[7]Mr and Mrs Burdett seek the following orders:1
a. An order for the sale of the property and the division of the proceeds.
b. An order that [Mr Willis] is to vacate the property so that it can be sold with vacant possession.
c. Orders dividing the proceeds of sale as follows:
1 Notice of interlocutory application for summary judgment dated 13 December 2023 at [1].
i. Costs of sale, including agents, marketing and legal fees are paid;
ii. The mortgage to ANZ is to be repaid with [Mr Willis] responsible for the debt and interest on his share; and
iii.The Applicants to be responsible for the principal and interest associated with their $82,000.00 lending;
iv. [Mr Willis] to account to the Applicants for one half of the occupational rent which would otherwise have been received for the property;
v. The Applicants to account to [Mr Willis] for one half of the rates and insurances paid by [him];
vi. The Applicants to account to [Mr Willis] for personal withdrawals from the Go Money account, as well as getting a credit for cash deposits;
vii.[Mr Willis] to account for one half of the $10,000.00 leant to [him] by [his] late mother;
viii.[Mr Willis] to account for one half of the $2,600.00 taken from [his] late father’s account at the time of his death;
ix. [Mr Willis] to account for one half of the value of the Hyundai vehicle retained by [him]- $13,000.00 total value;
d. Such other orders as the court deems necessary to resolve matters.
e. An order for costs.
[8] These orders are sought on the grounds that Mr Willis has no defence to the claims.2
[9] Mr Willis was served with, and accepted, a copy of these proceedings on 22 December 2023.3 He has not filed any notice of opposition and did not appear at the hearing.
Affidavit of Kim Mary Jean Burdett dated 13 December 2023
[10] Mrs Burdett has made an affidavit, on her and Mr Burdett’s behalf, in support of their application for summary judgment.4 Her affidavit largely repeats the facts set out above in greater detail, while making some further key points.
2 At [2].
3 Affidavit of service by Thomas Leon Rihia dated 23 January 2023 at [1]–[2].
4 Affidavit of Kim Mary Jean Burdett in support of interlocutory application for summary judgment for orders under s 339 of the Property Law Act 2007 dated 13 December 2023.
[11] Mrs Burdett outlines their wish to sell the property and mentions their attempt at selling the property at the time the caveat was lodged. She says that Mr Willis is refusing to co-operate with the sale process and to vacate the house to enable the property to be marketed for sale. She further says that, although Mr Willis has mentioned that he wants to purchase their share, they do not believe that he is capable of arranging it or obtaining finance.
[12] Mrs Burdett deposes that in approximately 1995, Mr Willis had borrowed money for the purpose of buying shares in a bar and restaurant known as the Mole & Chicken Restaurant and Bar at the Hilltop Shopping Centre on Taharepa Road, Taupō. She asserts that this loan was secured by a mortgage to ANZ over the property which Mr Willis acknowledged was his responsibility.
[13] Mrs Burdett mentions that in January 2014, after the passing of Mrs Burdett and Mr Willis’ father, the executor, Adriene Morgan (Ms Morgan) drafted an acknowledgement of the mortgage debt as being Mr Willis’ separate debt and distinct from their parents’ estate. This acknowledgement essentially rescinds Mr Willis’ interest in the property and confirms that he has no entitlement to any equity remaining in the property after repayment of the ANZ mortgage debt.
[14] Mrs Burdett deposes that there was an agreement that she and Mr Burdett would purchase the property from the estate for the mortgage balance on the basis that Mr Willis would be responsible for the mortgage and be able to occupy the property. She says that at the time, Mr Willis had limited income, no ability to obtain a mortgage himself, and no place to live. She says it was agreed that Mr Willis could occupy the property on the basis that he paid the outgoings on the property, including servicing the mortgage debt. She asserts that Mr Willis has solely occupied the property since 2014, while paying the required sum of money to cover insurance, rates, and mortgage payments.
[15] She sets out that in February 2014, they obtained finance to discharge the existing mortgage owed by Mr Willis. As a result, the property was transmitted to Mrs Burdett, Mr Willis, and Ms Morgan as executors of the estate, and then transferred to Mr and Mrs Burdett as owners, subject to the replacement ANZ mortgage.
[16] Mrs Burdett mentions their decision in early 2023 to sell the property. She says that in May of 2023, there was correspondence between Ms Morgan and Mr Willis regarding a proposal that Mr Willis could purchase Mr and Mrs Burdett’s share of the property and retain his half share subject to the mortgage he owed. However, she mentions that an agreement could not be reached.
[17] She deposes that Ms Morgan then sent Mr Willis a notice to vacate the property, however, he did not vacate. She says, when they attempted to sell the property, Mr Willis lodged a caveat preventing the sale of the property.
[18] Mrs Burdett deposes that Mr Willis has had nine years to organise finance to buy Mr and Mrs Burdett’s shares in the property and since May of 2023 to formalise finance. She says that he has not managed to progress it. Thus, she now seeks orders to sell the property and finalise all matters.
[19]Other matters that Mrs Burdett raises in her affidavit are as follows:
A.Mr and Mrs Burdett are willing to share the equity in the property on a 50/50 basis with Mr Willis. However, if they were to be treated as co- owners then a number of matters need to be taken into account. If they were co-owners, they would have been jointly responsible for the outgoings, but would have also received one half of the market rental for the property. The market rental is calculated to be $104,820.00. On the same basis, Mr Willis would be entitled to a credit for a one-half share of the rates and insurance paid by him. One half-share of the rates is calculated to be $10,435.20 and one half-share of the insurance is calculated to be $7,659.40.
B.On 26 November 2018, Mr and Mrs Burdett borrowed $82,000 secured against the property and both loan amounts were thereafter combined. She agrees that the $82,000 and any interest on that sum is their separate responsibility.
C.Mr Willis agreed to be responsible for the mortgage on the property and it was solely his responsibility up until 26 November 2018. From that date to 31 March 2023, the liability for mortgage payments (principal and interest) need to be apportioned between Mr and Mrs Burdett and Mr Willis. Mrs Burdett sets out the apportionments at [29] to [33] of her affidavit.
D.Mr Willis obtained $10,000.00 from their late mother to pay a judgment debt against him. He also made 13 withdrawals of $200 cash from their late father’s account for his own purposes.
E.The Hyundai vehicle was originally going to be retained by Mr Willis with a credit back to Mrs Burdett for her half-share. However, this never happened and instead Mr Willis retained the vehicle with no adjustments.
[20] At [39] to [41] of her affidavit, Mrs Burdett sets out the suggested resolution of Mr and Mrs Burdett’s claim.
Legal principles
[21]Rule 12.2(1) of the High Court Rules 2016 provides:
12.2 Judgment when there is no defence or when no cause of action can succeed.
(1)The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
[22] The relevant principles governing a summary judgment application are well established:5
The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but
5 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26] (citations omitted).
where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart. The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable: Eng Mee Yong v Letchumanan. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel.
[23] The wording of r 12.2 “may give judgment” indicates a residual discretion. Having regard to the various authorities, the position appears to be as follows:6
A.The discretion implied by the use of the word “may” is to be restrictively applied. In a great majority of cases, once the court is satisfied the defendant has no defence, there is no room for the exercise of discretion.
B.The residual discretion may be invoked to avoid oppression or injustice to the defendant where:
(i)The proceeding involves the actions or possible liability of a third party which is not before the court;
(ii)The proceedings are such that the opportunity should be given to allow discovery or other interlocutory applications to be concluded;
(iii)The circumstances of the case disclose very unusual features, the presence of which leads the court to conclude that the entry of summary judgment would be oppressive or unjust; or
(iv)The combination of complex issues of fact and law justify the dismissal of the application for summary judgment, either as a matter of discretion or because the court cannot be satisfied that the defendant has no defence.
C.Even where the court is not satisfied that a defence has been made out, in exceptional circumstances the application may be adjourned to allow for other processes to be followed.
Property Law Act 2007
[24]Section 339 of the Property Law Act 2007 (PLA) provides:
6 Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.11].
339 Court may order division of property
(1) A court may make, in respect of property owned by co-owners, an order—
(a)for the sale of the property and the division of the proceeds among the co-owners; or
(b)for the division of the property in kind among the co-owners; or
(c)requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.
(2) An order under subsection (1) (and any related order under subsection (4)) may be made—
(a)despite anything to the contrary in the Land Transfer Act 2017; but
(b)only if it does not contravene section 340(1); and
(c)only on an application made and served in the manner required by or under section 341; and
(d)only after having regard to the matters specified in section 342.
(3) Before determining whether to make an order under this section, the court may order the property to be valued and may direct how the cost of the valuation is to be borne.
(4) A court making an order under subsection (1) may, in addition, make a further order specified in section 343.
(5) Unless the court orders otherwise, every co-owner of the property (whether a party to the proceeding or not) is bound by an order under subsection (1) (and by any related order under subsection (4)).
[25]Section 341 of the PLA provides:
341Application for order under section 339(1)
(1) An application for an order under section 339(1) (and for any related order under section 339(4)) may be made by all or any of the following people:
(a)a co-owner of any property:
(b)a mortgagee of any property of a co-owner or co-owners if, under the mortgage and subpart 7 of Part 3, the mortgagee has become entitled to exercise a power of sale:
(c)a person with a charging order over any property of a co- owner or co-owners.
(2) Every person who is one of the following must, if not already a party to the proceeding on that application, be served with a copy of that application:
(a)a co-owner of the property:
(b)a person who has an estate or interest in the property that may be affected by the granting of the application:
(c)a person claiming to be a party to, or entitled to a benefit under, an instrument relating to the property.
(3) The court to which that application is made may, by order made on an application for the purpose, change, or dispense with service on, the people who must be served under subsection (2).
[26]Section 342 of the P L A provides:
342Relevant considerations
A court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:
(a)the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:
(b)the nature and location of the property:
(c)the number of other co-owners and the extent of their shares:
(d)the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:
(e)the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:
(f)any other matters the court considers relevant.
[27] In addition to orders under s 339, the Court may also make further orders as follows pursuant to s 343:
343Further powers of court
A further order referred to in section 339(4) is an order that is made in addition to an order under section 339(1) and that does all or any of the following:
(a)requires the payment of compensation by 1 or more co-owners of the property to 1 or more other co-owners:
(b)fixes a reserve price on any sale of the property:
(c)directs how the expenses of any sale or division of the property are to be borne:
(d)directs how the proceeds of any sale of the property, and any interest on the purchase amount, are to be divided or applied:
(e)allows a co-owner, on a sale of the property, to make an offer for it, on any terms the court considers reasonable concerning—
(i)the non-payment of a deposit; or
(ii)the setting-off or accounting for all or part of the purchase price instead of paying it in cash:
(f)requires the payment by any person of a fair occupation rent for all or any part of the property:
(g)provides for, or requires, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under section 339(1).
Analysis
[28] Summary judgment procedures are available for claims for specific performance, and also claims for relief under s 339 of the PLA.
[29] While the application is unopposed, it is still necessary to ensure that the statutory criteria under ss 339, 342 and 343 of the PLA are satisfied to the extent they are applicable. Mr Mounsey, for Mr and Mrs Burdett, has made submissions in respect of the application under these sections of the PLA to the circumstances in this proceeding. I review each of these below.
Co-owners
[30] Under s 339 of the PLA, any co-owner can apply for an order for sale. There is a question over whether Mr Willis is a co-owner, given he is not registered on the title. Mr Mounsey submits that authorities establishes that Mr Willis would be regarded as an owner as the term “owner” includes the owner of an equitable estate as
well as the owner of a legal interest, and he cited Read v Almond7 in support of this, under which decision beneficiaries under a constructive trust were entitled to claim. Mr Mounsey also refers to Fraser v Butler8 as further authority for the fact beneficiaries under a constructive trust hold an equitable interest.
[31] Mr Mounsey submits that in the present case Mr Willis claims a half share in the property pursuant to a constructive trust, in accordance with the caveat he has lodged to protect his interest, and as Mr and Mrs Burdett are prepared to concede he has an interest in the property, then he has an equitable interest and can be regarded as a co-owner under s 339.
[32] I accept Mr Mounsey’s submissions on this point and that Mr Willis is a co- owner of the property for the purposes of s 339.
Criteria in s 342 of the PLA
[33]The Court must consider the criteria under s 342. I consider these below.
Section 342(a) – Extent of shares in the property
[34] Mr Mounsey submits that Mr and Mrs Burdett, on the face of it, own the whole property, but Mr Willis claims a half share in the property under a constructive trust. He submits the parties entered into an agreement in January 2014 whereby Mr Willis waived his interest in the property, but Mr and Mrs Burdett are prepared to concede that Mr Willis has a half interest in the property, subject to the debt owing by him, and subject to certain other adjustments which are claimed in the statement of claim.
Section 342(b) – Nature and location of the property
[35] Mr Mounsey submits the property is a relatively standard residential dwelling, located in a relatively standard residential street in Taupo, previously the family home, and occupied by the parents of Mrs Burdett and Mr Willis until their deaths.
7 Read v Almond [2015] NZHC 2797 at [232], [241] to [252] and [254].
8 Fraser v Butler [2017] NZHC 120, (2017) 18 NZCPR 358 at [44] to [56].
[36] Mr Mounsey submits that Mr and Mrs Burdett reside in Australia and Mr Willis has been in occupation of the property, covering the mortgage and outgoings but not paying occupational rent. He submits that while Mr Willis signed a waiver of his interest in the property in January 2014, in fairness, Mr and Mrs Burdett have conceded it would be unfair if the January 2014 was given effect to and they are prepared to allow Mr Willis a half interest in the property, subject to the adjustments.
Hardship
[37] Mr Mounsey submits that as Mr Willis has not filed any response to the proceedings, it is hard to evaluate whether he will suffer any hardship if the sale of the property and division of the proceeds occurs. Mr Mounsey points out that if the sale is made, Mr Willis will have his liability under the mortgage discharged and receive some cash from the sale. In relation to Mr and Mrs Burdett’s position, Mr Mounsey submits they now wish to sell the property to release some cash as they are not receiving any return on their investment. He submits that of particular importance in this case is that in 2014 there was an agreement whereby Mr Willis waived his equity in the property, but has now changed his position, claiming a half share in the property and since 2014 has effectively occupied the property rent-free. Mr Mounsey submits that there is no particular hardship which would weigh against the sale. During the hearing, Mrs Burdett also indicated that her understanding is that Mr Willis was no longer residing in the property but residing mostly with his current partner, and therefore losing the right to occupy the property would not necessarily amount to a hardship for M Willis.
Contributions to improvements or maintenance
[38]Mr Mounsey submits there is no evidence before the Court in this regard.
Other matters the Court considers relevant
[39] Under this heading Mr Mounsey submits that the existence of the 2014 agreement is highly relevant as Mr and Mrs Burdett took the risk of signing up to have a mortgage for the benefit of Mr Willis and received no return for this. He submits
they are now prepared to share the equity in the property after repayment of Mr Willis’ debt and that a sale is in the best interests of all the parties.
Section 343 factors
[40] Under s 343, the Court is empowered to make any supporting orders necessary to give effect to an order for sale. Under this heading, Mr and Mrs Burdett are seeking orders for a number of adjustments between themselves and Mr Willis.
[41] Mr Mounsey submits that when the parties signed the 2014 agreement Mr Willis agreed to:
A.service the mortgage debt taken on by Mr and Mrs Burdett; and
B.waived any right or entitlement to any equity in the property when it was eventually sold; and
C.agreed to pay sufficient money into an account to cover insurance and be responsible for the rates direct.
[42] Mr Mounsey submits that the parties have effectively been operating in accordance with that agreement since 2014, but it has continued much longer than expected and Mr and Mrs Burdett now regard it as unfair and accordingly have agreed to treat Mr Willis as a co-owner of the property. He submits that on the basis that Mr Willis is to be treated as a co-owner of the property, occupational rent should be accounted for.
[43] Mr Mounsey refers to the decision of Kumar v Patel where the Court found a useful discussion of the law as follows:9
[23] … the general position is that a co-owner cannot, by failing to exercise their entitlement to occupy the property, claim compensation against a co- owner in occupation since they are merely exercising their lawful right. However, under its equitable jurisdiction, the court could inquire into the position …
9 Kumar v Patel [2018] NZHC 1725 at [23].
… to see whether a tenant in common in occupation of the premises was doing so to the exclusion of one or more of the other tenants in common, for whatever purpose and by whatever means. If this was found to be the case, then in order to do equity between the parties an occupation rent should be paid …
(Citations removed)
[44] Mr Mounsey also refers to the decision in Dyas v Elliott where the High Court considered the discretion under s 343(f) of the PLA, and said:10
The court’s discretion under s 343(f) is wide and unfettered, but these cases assist in applying it. Under that section an absent co-owner may obtain occupation rent from the co-owner in possession. It is not every absent co- owner who can obtain occupation rent from the other. While it would be unwise to endeavour to set out parameters for the exercise of the discretion, where one co-owner chooses to stay in possession and this makes it not reasonably practicable for the other co-owner to continue to cohabit, occupation rent will usually be ordered. The position will be different where a co-owner leaves voluntarily, would be welcome back, and it is reasonably practicable for that co-owner to live there.
[45] Mr Mounsey submits that to do equity between the parties, occupation rent should be rewarded. As Mr Willis is now going to share in the equity of the property, having waived his entitlement to do so in 2014, it is equitable that occupational rent should be charged. On the other side of the coin, Mr Mounsey submits it would then be appropriate for Mr and Mrs Burdett to account to Mr Willis for one-half share of the insurance and rates he has paid during the period from 2014 to date.
Vacant possession
[46] Mr Mounsey submits that Mr and Mrs Burdett have tried to sell the property before, but that process has been frustrated by Mr Willis who then subsequently lodged a caveat. Mr Mounsey refers to the decision in Swanson v Norris,11 in which case the respondent would not engage with the applicant for the sale of the property despite reasonable attempts by the applicant, and the Court ordered the respondent to vacate the property and made all orders necessary to facilitate the sale of it, leaving the division of the proceeds of sale and occupation rent claimed by the applicant for a further order of the Court.
10 Dyas v Elliott (2010) 11 NZCPR 353 at [18] per Asher J.
11 Swanson v Norris [2021] NZHC 3342.
Result
[47] I am of the view, having considered counsel’s submissions and the factors in ss 342 and 343 of the PLA, that orders for sale of the property should be made as sought by Mr and Mrs Burdett and orders under s 343 for the adjustments they seek which, on the evidence before the Court, appear to be fair and equitable between the parties.
[48] To ensure a proper price is obtained on the sale of the property, Mr and Mrs Burdett are to obtain a registered valuation of the property prior to the sale, a copy of which is to be provided to Mr Willis.
Orders
[49]I make the following orders:
A.Pursuant to s 339 of the Property Law Act 2007 (the PLA) that the property at 1/195 Taharepa Road, Taupo (the property), is to be sold, the mortgage to the ANZ Bank New Zealand Limited is to be repaid, and the proceeds of sale are to be divided among the co-owners, pursuant to s 339 of the PLA.
B.Pursuant to s 343 of the PLA, that:
(a)Mr Willis is to vacate the property and leave the same in a clean and tidy state within 20 working days of the date of this order;
(b)Mr and Mrs Burdett are authorised to proceed with a sale of the property through their chosen real estate agent in a manner likely to achieve the best sale price in the current market;
(c)Mr and Mrs Burdett are to obtain a registered valuation of the property and provide a copy of the registered valuation to
Mr Willis, and obtain market appraisals from one or more real estate agents, and any costs of doing so may be treated as a cost of the sale;
(d)if the agent recommends any works are done to the property prior to sale to maximise the selling price, provided the scope of such works is reasonable in the context of preparing for the sale, Mr and Mrs Burdett may carry out such works and the costs of the same shall be deducted from the proceeds of sale, and if any such costs are due to Mr Willis failing to leave the property in a clean and tidy state, such costs are to be deducted from Mr Willis’ share of the sale proceeds;
(e)if the property fails to sell by way of the recommendation of the real estate agent appointed by Mr and Mrs Burdett, they may take the property to auction, and set the reserve price for such auction;
(f)Mr and Mrs Burdett may select a lawyer in Taupo to act on the conveyancing of the property;
(g)costs of sale, including but not limited to marketing, legal, valuation and repairs (if necessary) may be deducted from the proceeds of sale;
(h)After a sale is achieved, and after payment of the costs of sale, the proceeds of sale are to be divided in two and distributed as follows:
(i)Mr Willis’ share of the mortgage, together with interest, will be deducted from his share;
(ii)Mr and Mrs Burdett’s share of the mortgage, and interest, will be deducted from their share;
(iii)Mr and Mrs Burdett will account to Mr Willis for one half of rates and insurance paid by him over the course of ownership;
(iv)Mr Willis is to account to Mr and Mrs Burdett for occupational rent, being one half of the market rental the property would have achieved if it had been rented to a third party from the date of transfer of the property into Mr and Mrs Burdett’s name, until such time as the property settles or Mr Willis vacates, whichever is earlier, at the following rates:
1. $200.00 per week from 7 February 2014 until 7 February 2023 (being one half of the average rental value over this period); and
2. $255.00 per week from 8 February 2023 until the earlier of settlement or vacation by Mr Willis.
(v)$6,500.00 is to be deducted from Mr Willis’ share and paid to Mrs Burdett to account for the extra value received by Mr Willis from his late father’s state.
(vi)$6,300.00 is to be deducted from Mr Willis’ share and paid to Mrs Burdett to account for the money received by Mr Willis from his late mother, and taken by Mr Willis from his late father’s accounts;
(vii)Mr and Mrs Burdett are to account to Mr Willis for the difference between the deposits and withdrawals made by them from the Go Money Account, Mr and Mrs Burdett to get credit for any deposits made by them to pay rates and insurance invoices;
C.Caveat 12786591.3 is to be removed from the title to the property, pursuant to s 142 of the Land Transfer Act 2017.
[50] As to costs, as Mr and Mrs Burdett are the successful party, they are entitled to costs on a 2B basis for the application, together with disbursements. These costs are to be deducted from Mr Willis’ share of the proceeds of sale of the property.
…………………………….. Associate Judge Taylor
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