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Carey-Venable v Carey

Carey-Venable v Carey

Case [2016] NZHC 2646 9 November 2016

Co-ownership

Order for Sale

Contributions to Property

Deed of Declaration of Trust

Property Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-944 [2016] NZHC 2646

BETWEEN
GABRIELLE ANNE CAREY-VENABLE

Plaintiff

AND

BERNARD ANTHONY CAREY Defendant

Hearing: 25 October 2016

Appearances:

G Kohler QC for the Plaintiff
B P Keene QC and M Cole for the Defendant

Judgment:

9 November 2016

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 9 November 2016 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………………………………….
Registrar/Deputy Registrar

Solicitors:
Moody & Gulley, Takapuna, Auckland, for the Plaintiff
Christopher Taylor lawyers, Parnell, Auckland, for the Defendant

Copy for:
G Kohler QC, Auckland, for Plaintiff
B P Keene QC, Auckland, for Defendant

CAREY-VENABLE v CAREY [2016] NZHC 2646 [9 November 2016]

[1] The plaintiff, Gabrielle, and the defendant, Bernard, are sister and brother. They own a residential property at 31A Stanley Point Road, Devonport, Auckland as tenants in common in equal shares. They bought it in July 2008 for $3.2m. Since then Bernard has lived in the property. He says that since the purchase he has maintained the property and made improvements. Gabrielle paid for the purchase of the property but has stayed there only occasionally. In 2012 they fell out. Gabrielle has not gone back.

[2] She now wants to realise her interest in the property. In her first cause of action she has applied for orders under Part 6 subpart 5 of the Property Law Act
2007, in particular an order for the sale of the property. For her second cause of action she says that under a deed they made in July 2009, Bernard promised to pay her $900,000 as part reduction of his debt to her for an advance to buy his interest in the property. She seeks judgment against him for that. She has number of chattels in the house. She seeks an order for their return in her third cause of action. She has applied for summary judgment on the first and second causes of action.1 She acknowledges that summary judgment cannot be given for a division of the proceeds of sale, but says that an order for sale can be made.

[3] The principles on which plaintiff’s applications for summary judgment are decided are not in dispute. The Court of Appeal re-stated them in Krukziener v Hanover Finance Ltd:2

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 [1987] 1 NZLR 1 (CA) at 3. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but 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 (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not…

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 Carey-Venable v Carey

Details

AGLC: Carey-Venable v Carey [2016] NZHC 2646
Case: [2016] NZHC 2646
Decision Date: 9 November 2016

CaseChat Overview and Summary

In the case of Carey-Venable v Carey, Gabrielle, the plaintiff, and Bernard, the defendant, are siblings who own a residential property in Auckland as tenants in common in equal shares. The plaintiff seeks orders under Part 6 subpart 5 of the Property Law Act 2007, specifically an order for the sale of the property, and judgment against the defendant for $900,000 under a deed they made in July 2009. The defendant has argued that he has fulfilled his obligations under the deed by contributing improvements and maintenance to the property. The court considered the principles of summary judgment, the relevant statutory provisions, and the evidence presented by both parties. The court found that the defendant does not have an arguable defence to the plaintiff's claim for $900,000 and that the factors favour a separation of interests. The court ordered the sale of the property and granted judgment against the defendant for $900,000. The court reserved the matters of interest on the judgment, the value of the defendant's contributions, the value of the parties' respective interests in the property, the distribution of the proceeds of sale, and the claim for possession of chattels for later decision. The court also ordered the defendant to pay costs on the summary judgment application.

Orders