Cooper v Pongi - [2013] NZHC 3265

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003273 [2013] NZHC 3265

UNDER the Property Law Act 2007

IN THE MATTER of an application under s 339 of the Act for the sale of the property and the division of the proceeds among the co-owners and for orders under s 343 of the Act

BETWEEN PAMELA COOPER Plaintiff

ANDDAVID JOHN FRANCIS PONGI Defendant

Hearing: 5 December 2013

Appearances: M Keall for Plaintiff
No appearance for Defendant

Judgment: 9 December 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 9 December 2013 at 9.30 am
pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date………………………

COOPER v PONGI [2013] NZHC 3265 [9 December 2013]

Introduction

[1] The plaintiff, Pamela Cooper, is a co-owner of a house at 755 West Coast Road, Oratia. She previously owned the house herself but under a property sharing agreement dated 17 June 2009 she and her adult foster son, David Pongi, agreed to purchase the property jointly. Ms Cooper now wishes to terminate the agreement and have the house sold. But Mr Pongi will not co-operate in that process. Ms Cooper has applied for an order under s 339 of the Property Law Act 2007 that the property be sold and, after accounting for various expenses connected with the property, the proceeds distributed between her and Mr Pongi.

[2] Under s 339(1)(a) the Court may make an order for the sale of property owned by co-owners and the division of the proceeds among them. The prerequisites set out at s 339(2) are that any such order must not contravene s 340(1). This relates to restrictions on the subdivision of land and is not relevant to the present case. Further, an order can only be made on an application made and served in the manner required by s 341. This has been done. Finally, an order can only be made after regard to the matter specified in s 342. These matters are:

(a) The extent of the share in the property of the co-owner; (b) The nature and location of the property;
(c) The number co-owners and extent of their shares;

(d)The hardship that would be caused to the applicant by the refusal of the order in comparison with the hardship that would be caused to any other person by the making of the order;

(e) The value of any contribution made by any co-owner to the cost of improvements to or maintenance of the property;

(f) Any other matters that the Court considers relevant.

Grounds for the application

[3] When Ms Cooper and Mr Pongi entered into the agreement, the notional purchase price of $450,000 was satisfied by Ms Cooper contributing her equity of

$200,000 and Ms Cooper and Mr Pongi jointly borrowing $258,000 from the ASB Bank.

[4] Ms Cooper and Mr Pongi both lived at the property until December 2009. During that time they shared the outgoings, including the mortgage payments. However, the relationship between…

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 Cooper v Pongi

Details

AGLC: Cooper v Pongi [2013] NZHC 3265
Case: [2013] NZHC 3265
Decision Date: 9 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, the plaintiff Pamela Cooper, co-owner of a house at 755 West Coast Road, Oratia, applied for an order under section 339 of the Property Law Act 2007 to sell the property and distribute the proceeds among the co-owners, namely herself and the defendant, David Pongi. Pamela Cooper, having previously owned the house alone, entered into a property sharing agreement with David Pongi on 17 June 2009. However, the relationship between Pamela Cooper and David Pongi deteriorated, and she sought to terminate the agreement and sell the property. David Pongi refused to co-operate, leading Pamela Cooper to apply for the court's intervention.

The legal issues before the court were whether an order for the sale of the property and the division of the proceeds among the co-owners could be made under section 339 of the Property Law Act 2007 and, if so, the appropriate terms of such an order. The court had to consider the extent of the co-owners' shares, the nature and location of the property, the number of co-owners, the hardship that would be caused to Pamela Cooper if the order was not made, the value of any contributions made by any co-owner to the cost of improvements to or maintenance of the property, and any other matters that the court considered relevant under section 342 of the Act.

The court found that Pamela Cooper and David Pongi had jointly borrowed $258,000 from the ASB Bank to purchase the property, with Pamela Cooper contributing her equity of $200,000. Both parties lived at the property until December 2009 when David Pongi moved out and began withdrawing funds from the joint ASB account. Pamela Cooper had resolved to terminate the property-sharing agreement, and she duly notified David Pongi of her intention to do so in February 2011. However, David Pongi did not respond to the notice or subsequent communications from Pamela Cooper and her solicitor. The property is a two-storey, three-four bedroom house set on 1,442 square metres of land with a current market value of $446,000. Pamela Cooper, now 68 years old, finds the house too large and difficult to maintain. The court concluded that there would be hardship to Pamela Cooper if the property was not sold and that there would not be hardship to David Pongi if the property was sold since he had not lived at the property for some time and shown no interest in either living there in the future or purchasing Pamela Cooper's share. For these reasons, the court made an order under section 339 of the Property Law Act 2007 for the sale of the property and the division of the proceeds among Pamela Cooper and David Pongi.

The court ordered that the property be sold by public sale organised by Pamela Cooper or her agent, and that in the event that David Pongi failed or refused to sign any authority to sell, agreement for sale and purchase, or other document required to effect the sale of the property, Pamela Cooper was authorised to execute such document or documents for and on behalf of David Pongi. The proceeds of sale of the property were to be disbursed in the following priority and manner: payment of the amount due and owing under the mortgage, payment of any real estate agent's commission and legal fees incurred by the vendors in connection with the sale of the property, payment of any marketing costs in relation to the sale, payment to Pamela Cooper of $6,417.96 as reimbursement for costs relating to preparation of the property for sale, the first 200/450th of the balance of the sale proceeds to Pamela Cooper, the remainder of the sale proceeds to be divided equally between Pamela Cooper and David Pongi, and deductions from David Pongi's share to be made for various amounts owed to Pamela Cooper. The balance owing to David Pongi was to be held by Duncan King Law on trust in interest-bearing account in David Pongi's name. Pamela Cooper was granted leave to apply for further directions.

Orders