Dyson v Young - [2024] NZHC 2166

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2023-488-000102

[2024] NZHC 2166

UNDER ss 339 to 343 of the Property Law Act 2007 and Part 19 of the High Court Rules 2016

BETWEEN

KIMBERLEY ANN DYSON
Applicant

AND

CATHERINE ELIZABETH YOUNG

Respondent

Hearing: 5 August 2024

Counsel:

RC Mark for Applicant

Judgment:

5 August 2024

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel: RC Mark, Kerikeri. MB Dodds, Kerikeri.

DYSON v YOUNG [2024] NZHC 2166 [5 August 2024]

The case

[1] This case is about a co-owned property, and what should happen to it. One owner, Kimberley Dyson, says it should be sold. The other owner, Catherine Young, has not participated in the case.

The property

[2]The property is in Awanui, a small township on the outskirts of Kaitaia.1

[3] Its certificate of title records a fee simple estate and importantly, that Ms Dyson and Ms Young each owns a half-share (as tenants in common).

Background

[4] The background is a little messy. It is most easily explained by capturing much of Ms Dyson’s first affidavit:

Lead-up to the property purchase

The property was formerly owned by Aaron and Kathy-Lee Haywood, who were close friends of mine. They were concerned as to the living situation at the time for my daughter and myself. They offered to sell to me their property at … Awanui. The property had been tenanted for many years. I was offered the property at what was said to be a discount of $30,000 to reflect that no real estate agent would be involved in the sale and my friendship with the vendors.

At the time I was easily in a position to finance the purchase through the Diamond Family Trust. I, however, talked about the purchase to my then long term friend, Catherine initially in her capacity as a trustee.

The Diamond Family Trust (“DFT”) was created by Deed dated 25 March 2004. I regard the DFT’s primary beneficiary as being my daughter. On 1 December 2009, Catherine became a new trustee of the DFT. I continued as a trustee.

The original intention between Catherine and myself was for the DFT to purchase the property. The agreement for sale and purchase of the property dated 20 June 2017 originally recorded the purchaser as myself and Catherine as trustees for the Diamond Family Trust. Ultimately, when the agreement for sale and purchase for the property was fully signed by Catherine and myself, the reference to “as trustees for the Diamond Family Trust” was crossed out, as was the reference to “nominee”. … I had provided to my conveyancing lawyer the Trust Deed establishing the DFT and the Deed dated 1 December 2009 appointing Catherine as a new trustee.

1 It is not necessary to record the precise address which, of course, is identified in the court file.

Once Catherine had decided to come on board as a joint purchaser with me of the property, there was no need for me…

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 Dyson v Young

Details

AGLC: Dyson v Young [2024] NZHC 2166
Case: [2024] NZHC 2166
Decision Date: 5 August 2024

CaseChat Overview and Summary

Kimberley Ann Dyson applied for an order for the sale of a residential property located in Awanui and for the proceeds to be distributed to her and Catherine Elizabeth Young, who were co-owners as tenants in common. The application was made pursuant to sections 339 to 343 of the Property Law Act 2007. Catherine did not participate in the proceedings. The court had to determine whether it should order the sale of the property and distribution of the proceeds between the co-owners. The court considered the relevant factors under section 342 of the Act, including the extent of the co-owners' shares, the nature and location of the property, the hardship that would be caused by the refusal or making of the order, the value of any contributions to improvements or maintenance, and any other relevant matters. The court found that the property should be sold, and the proceeds distributed, because Kimberley's only significant asset was her share in the property, she had not received any rental income, and her relationship with Catherine had broken down. The court also imposed conditions for the sale, including the repayment of a debt and interest, and authorised the Registrar of the High Court to sign any necessary documents if Catherine did not cooperate. The court ordered costs on a 2B scale.

The court ordered that the property be sold and the proceeds distributed between the co-owners. The court also imposed conditions for the sale, including the repayment of a debt and interest, and authorised the Registrar of the High Court to sign any necessary documents if the non-applying co-owner did not cooperate. The court ordered costs on a 2B scale.

Orders