Coffey v Coffey

Case [2012] NZHC 1765


IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2011-406-000284 [2012] NZHC 1765

UNDER  The Property Law Act 2007

IN THE MATTER OF     an application for a sale order pursuant to ss 339-343 of the Property Law Act 2007

BETWEEN  LEO TIMOTHY COFFEY MARCELLA ANNE COFFEY BARRY MATTHEW COFFEY ANDREA MICHELLE KERWIN PAUL NESTOR KERWIN Plaintiffs

ANDTRAVIS LEO COFFEY GERARD WILLIAM COFFEY SANDRA MAREE COFFEY Defendants

Hearing:         7 May 2012

(Heard at Blenheim)

Appearances: Q A M Davies and T A Hutchinson for Plaintiffs/Applicants

D Chesterman for Defendants/Respondents

Judgment:      19 July 2012

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

[as to plaintiffs’ summary judgment application]

Introduction

[1]      The parties are the co-owners of a family holiday house in the Marlborough

Sounds. The property has been in family ownership since 1989.

COFFEY V COFFEY HC BLE CIV-2011-406-000284 [19 July 2012]

[2]      The property is owned by the parties as tenants in common in one sixth shares.  The plaintiffs hold four-sixths.      The defendants own the remaining two

shares. The shares are owned:

Leo and Marcella (parents/plaintiffs) – two-sixths

Barry (son/plaintiff) one-sixth

Andrea and Paul (daughter and son-in-law/plaintiffs) – one-sixth

Travis (son/defendant) one-sixth

Gerard and Sandra (son and daughter-in-law/defendants) one-sixth.

[3]      As the existence of litigation indicates, the family is divided over the future of the property.  The plaintiffs want to sell their shares, whether as part of a full sale of the property or by sale to the defendants.  They seek a suite of orders to effect a sale.

[4]      Defendants oppose the orders sought.   They rely on rights which they say arise by agreement or in equity.  They further assert that there is a need for the Court to address the value of contributions made.  The defendants say there are material factual disputes.   They say that the case is unsuitable for resolution by summary judgment.  They say that the breadth of discretion awarded to the Court under s 339

Property Law Act 2007 highlights the unsuitability of this case for summary judgment.

Plaintiffs’ summary judgment application – the general principles

[5]      The starting point for a plaintiff’s summary judgment application is r 12.2(1) High  Court  Rules,  which  requires  that  the  plaintiff  satisfy  the  Court  that  the defendant has no defence to any cause of action in the statement of claim or to a particular cause of action.

[6]      I  summarise  the  general  principles  which  I  adopt  in  relation  to  this application:

(a)       Commonsense, flexibility and a sense of justice are required (Haines v

Carter [2001] 2 NZLR 167 (CA) at 187).

(b)The onus is on the plaintiff seeking summary judgment to show that there is no arguable defence.  The Court must be left without any real doubt or uncertainty on the matter.

(c)      The  Court  will  not  hesitate  to  decide  questions  of  law  where appropriate.

(d)The Court will not attempt to resolve genuine conflicts of evidence or to assess the credibility of statements and affidavits.

(e)      In determining whether there is a genuine and relevant conflict of facts, the Court is entitled…

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Coffey v Coffey [2012] NZHC 1765
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[2012] NZHC 1765
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CaseChat Overview and Summary

The parties in Coffey v Coffey were co-owners of a family holiday house on Arapawa Island in the Marlborough Sounds. The plaintiffs (the parents and two of their children) sought a sale order for the property under s 339 of the Property Law Act 2007. The defendants (the other two children) opposed the sale, asserting rights arising by agreement or in equity. The plaintiffs applied for summary judgment. The key legal issue was whether the defendants had an arguable defence. The Court found that the defendants had no arguable defence to the sale, as their claims of an oral family agreement, constructive trust, resulting trust, and equitable estoppel were not supported by the evidence. The Court granted the plaintiffs' application for a sale order, finding that the relevant considerations under s 342 of the Act favoured an order of sale. The Court ordered the property to be sold and the proceeds divided among the co-owners according to their respective shares. The defendants were given an opportunity to purchase the plaintiffs' shares at a fair and reasonable price.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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