Chiswell v Cunynghame - [2020] NZHC 1651

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-531

[2020] NZHC 1651

UNDER The Property Law Act 2007

IN THE MATTER OF

an application under s 339

BETWEEN

IAN KEVIN CHISWELL

Applicant

AND

DIANA PATRICIA CUNYNGHAME

Respondent

Hearing: 17 June 2020

Appearances:

A J Peat for Applicant

T Greenwood for Respondent

Judgment:

10 July 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 10 July 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Duncan King Law, Auckland Greenwood Law, Oneroa

CHISWELL v CUNYNGHAME [2020] NZHC 1651 [10 July 2020]

Introduction

[1] Ian Chiswell (the applicant) and Diana Cunynghame (the respondent) are brother and sister. They each own a half share of the residential property at 8 Fourth Avenue, Onetangi, Waiheke Island (the property), where the respondent resides with her partner. The relationship between brother and sister has deteriorated to the point that they no longer speak to one another.

[2] The applicant would like to sell the property and applies for leave to commence a proceeding by originating application to apply for an order for sale of the property pursuant to s 339 of the Property Law Act 2007 (the Act). The respondent opposes the application.

Background

[3] The property was owned and occupied by the parties’ mother, Ruth Chiswell (Ruth) until her death in January 2011. Upon her death, the property passed by transmission to the applicant and respondent initially as executors of Ruth’s will, and thereafter by transfer with each of them becoming the owner of a half-share of the property on 21 March 2011.

[4] The respondent and her partner had also been living at the property prior to Ruth’s death, and ever since then they have continued to reside at the property. The applicant says that the respondent’s continued occupancy of the property was initially a matter of mutual convenience, but that there was no arrangement made or agreement between them that she and her partner could reside there rent free or forever.

[5] The applicant says that he has been excluded from any use or enjoyment of the property by the respondent over the past two years or so. He says that on a number of occasions over the years since their mother’s death he has asked the respondent to pay some rent for her use of the property, but she has repeatedly refused to do so. He says that he has also asked the respondent to agree to sell the property or consider some alternative arrangements, but that she has similarly refused to entertain his suggestions.

[6] The applicant says that he would now like to have the property sold so that he can have access to the value of his half interest in the property. He says that he currently lives on a tight budget and needs the money presently tied up in the property to better support himself and his…

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 Chiswell v Cunynghame

Details

AGLC: Chiswell v Cunynghame [2020] NZHC 1651
Case: [2020] NZHC 1651
Decision Date: 10 July 2020

CaseChat Overview and Summary

Ian Chiswell and Diana Cunynghame, siblings and co-owners of a property at 8 Fourth Avenue, Onetangi, Waiheke Island, are in dispute over the sale of the property. Ian, the applicant, seeks to sell the property to access the value of his half-share and improve his financial situation. Diana, the respondent, opposes the sale and intends to bring a counterclaim regarding another jointly owned property. The High Court of New Zealand was required to decide whether the originating application procedure was appropriate for resolving the dispute between the parties.

The legal issues the court needed to address were whether the originating application procedure was suitable for the case and whether the applicant's application for leave should be granted. The court considered whether the use of the originating application procedure was in the interests of justice, and whether the dispute involved straightforward statutory considerations or broader factual issues. The court also had to weigh the potential benefits of the originating application procedure, such as expeditious resolution and cost-effectiveness, against the respondent's concerns about the need for discovery and the possibility of cross-claims or counterclaims.

The court concluded that the originating application procedure was appropriate for the case, as the applicant's application for an order for sale under s 339 of the Property Law Act 2007 involved straightforward statutory considerations. The court found that the issues were well-defined, and the relevant evidence could be adequately addressed through affidavits. The court held that the respondent's intention to bring a counterclaim was not a sufficient reason to preclude the use of the originating application procedure, as the co-ownership of another property was a separate matter that could be addressed in a different proceeding if necessary. The court also found that the use of the originating application procedure would not cause any unfairness or prejudice to the respondent, as the issues were defined, and the evidence would be confined to matters relevant to those issues.

The court granted the applicant's application for leave to commence the proceeding by originating application. The court directed the parties to file and serve costs memoranda within five working days of the date of delivery of the judgment.

Orders