Burley v Colson - [2025] NZHC 200

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002935 [2025] NZHC 200

IN THE MATTER of an application for an order for sale under s 339 of the Property Law Act 2007 and for ancillary orders

BETWEEN

HEATHER MARY CARLYLE BURLEY and MARK ROLAND WINGER as

TRUSTEES OF THE KAY CEE TRUST

Applicants/Plaintiffs

AND

MARK STEPHEN COLSON and MARKSON TRUSTEE COMPANY LIMITED as TRUSTEES OF THE MARKSON TRUST

Respondents/Defendants

Hearing: 18 February 2025

Appearances:

J E McLennan for Applicants/Plaintiffs

No appearance for Respondents/Defendants

Judgment:

18 February 2025

ORAL JUDGMENT OF VENNING J

Solicitors: Holmden Horrocks, Auckland

BURLEY and WINGER as TRUSTEES OF THE KAY CEE TRUST v COLSON and MARKSON TRUSTEE COMPANY LIMITED as TRUSTEES OF THE MARKSON TRUST [2025] NZHC 200 [18 February 2025]

[1] Heather Burley and Mark Winger as trustees of the Kay Cee Trust (the applicants) seek an order for the sale of a property at 235B Tramway Road under s 339 of the Property Law Act 2007, together with related and incidental orders. The respondents, Mark Colson and Markson Trustee Company Limited, are trustees of the Markson Trust and are co-owners of the property as tenants in common in equal shares.

[2] In the statement of claim issued on 18 November 2024, the applicants also seek further relief. They seek orders to recover costs incurred in relation to the property and damages for breach of an agreement between the applicants and respondents before the division of the net proceeds of sale. For present purposes the current application is limited to an order for sale (and orders relating to the practical details of sale). The applicants intend to seek the further orders from the Court in due course.

Background

[3] Heather Burley and Mark Colson entered a de facto relationship in 1994 and married on 24 February 1995. They separated on 6 June 2016. To settle matters following separation Mr Colson and Ms Burley entered an agreement pursuant to s 21A of the Property (Relationships) Act 1976, together with a Property Sharing Agreement for the property at 235B Tramway Road, both dated 24 April 2018.

[4] As part of their agreement Ms Burley and Mr Colson agreed to resettle 235B Tramway Road into two new trusts as tenants in common in equal shares. Although the parties made that agreement Mr Colson became difficult to deal with and has not been heard from for some time. Ultimately Ms Burley sought and obtained an order for specific performance and a vesting order from the Manukau Family Court vesting 235B Tramway Road in the two trusts in accordance with the agreement.

[5] Since obtaining the vesting orders Ms Burley has been responsible for the repair, maintenance and upkeep of the property. She now seeks an order enabling the sale of the property. These proceedings were issued on 15 November 2024 and have come before the Court by way of formal proof. Ms Burley has not had contact with 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 Burley v Colson

Details

AGLC: Burley v Colson [2025] NZHC 200
Case: [2025] NZHC 200
Decision Date: 18 February 2025

CaseChat Overview and Summary

Heather Burley and Mark Winger as trustees of the Kay Cee Trust sought an order for the sale of a property located at 235B Tramway Road, Auckland, under section 339 of the Property Law Act 2007. The respondents, Mark Colson and Markson Trustee Company Limited as trustees of the Markson Trust, are co-owners of the property as tenants in common in equal shares. The applicants sought the sale of the property as they had been unable to reach an agreement with the respondents about the future of the property, and they wished to liquidate their interest in the property.

The legal issues before the Court involved the exercise of the Court’s discretion under section 339 of the Property Law Act 2007 to order the sale of the property, and the relevant considerations under section 342 of the Act that the Court must take into account when exercising that discretion. The Court also considered whether the application had been properly brought, and the consequences of the orders made in relation to the costs of the proceedings.

In its judgment, the Court held that the application for an order for sale had been properly brought and that there were no considerations under section 339(2)(a) or (b) that applied to prevent the Court from exercising its discretion. The Court noted that section 339(1) provides the Court with a broad discretion, which is to be exercised in accordance with the discretionary factors under section 342 of the Act. Having regard to the considerations under section 342, the Court was satisfied that the applicants were entitled to their share of the property in accordance with the agreement of the parties. The Court also noted that the burden of repairing and maintaining the property had fallen on Ms Burley, and that she wished to sell the property.

Accordingly, the Court made an order under section 339(1)(a) for the sale of the property to facilitate the applicants’ entitlement to their share of the property. The Court also made a number of additional procedural orders to give effect to the order for sale, including appointing a real estate agent and a solicitor to act on the sale of the property, and directing that the applicants were to decide on the method of sale and the sale price for the property. The Court also made orders in relation to the costs of the proceedings, including that the respondents’ share of the proceeds of the sale of the property would be used to pay the applicants’ legal costs of $30,596.75, including disbursements.

The Court reserved leave for the applicants to pursue the remaining causes of action in the substantive proceeding, and reserved the costs of the general proceedings in relation to the remaining orders sought. The Court also made orders in relation to the payment of land rates, water rates, and other incidental costs from the proceeds of the sale of the property.

Orders