Burdett v Willis - [2024] NZHC 277

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
Applicants

AND

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…

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 Burdett v Willis

Details

AGLC: Burdett v Willis [2024] NZHC 277
Case: [2024] NZHC 277
Decision Date: 26 February 2024

CaseChat Overview and Summary

The applicants, Shane Burdett and Kim Burdett, sought summary judgment against Ricki Willis, who lodged a caveat on their property, claiming a half share based on a constructive trust. Willis did not oppose the application or appear at the hearing. The applicants sought an order for the sale of the property, division of proceeds, and for Willis to vacate the property. They also requested adjustments for contributions and other relevant matters. The court accepted Willis as a co-owner under the Property Law Act 2007 and considered the statutory criteria in sections 342 and 343 of the Act. The court found that the applicants' evidence was sufficient to show there was no defence, and granted the orders for sale, division of proceeds, and other adjustments as sought, including requiring Willis to vacate the property and pay occupational rent. Costs were awarded to the applicants.

Orders