Fraser v Butler - [2017] NZHC 944

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-416-23 [2017] NZHC 944

BETWEEN
NEIL ANDREW FRASER BY HIS

LITIGATION GUARDIAN ROSS WILLIAM FRASER Plaintiff

AND

MARILYN TERESA BUTLER Defendant

Hearing: 20 March 2017

Appearances:

Mr Simperingham for the Plaintiff
Mr Weatherhead for the Defendant

Judgment:

10 May 2017

JUDGMENT OF CULL J

Introduction

[1] The plaintiff (Mr Fraser) seeks an order under s 339(1)(a) of the Property Law Act 2007 (the Act) that a farming property in the Waimata Valley in Gisborne (the Property) be sold and seeks directions as to how the proceeds from the sale are to be divided.

[2] Mr Fraser suffers from dementia and this action is bought on his behalf by his litigation guardian. Mr Fraser is a majority share co-owner of the Property, which is his most significant asset and as he derives no benefit from the land, he seeks that the land now be sold.

[3] The Property is currently being occupied by the defendant, Ms Butler, his former de facto partner, who occupies the Property exclusively with her family. Although registered as the owner of the Property, Ms Butler holds the Property as to
a 29 per cent share for herself and the remaining 71 per cent for Mr Fraser.

FRASER v BUTLER [2017] NZHC 944 [10 May 2017]

Background facts1

[4] Mr Fraser was originally the owner of the Property, comprising approximately 86 ha situated in Waimata Valley Road, Waimata Valley, Gisborne. In August 1993, Mr Fraser transferred a half-share in the Property to his wife, Katrina Fraser.

[5] Mrs Fraser died intestate in early 2005. Her estate was administered by the

Public Trust Office (the Public Trust).

[6] Mr Fraser was adjudicated bankrupt in or about late 2006 or early 2007, and his one-half share in the Property vested in the Official Assignee. The Official Assignee obtained an order from the High Court that the Property be sold to satisfy Mr Fraser’s debts. Mr Fraser and Ms Butler entered into an arrangement, which averted a sale by the Official Assignee. Two things occurred under that arrangement.

[7] First, the Public Trust indicated that on payment of the sum of $60,711, which was required to cover the Public Trust’s obligations and costs associated with the administration of the late Mrs Fraser’s estate, the Public Trust would be prepared to transfer the late Mrs Fraser’s one-half share in the Property to Mr Fraser. Second, there was an agreement by Ms Butler to pay both the $60,711 sought by the Public Trust and the amount owing to Mr Fraser’s creditors in his bankruptcy. In exchange for her payments, Ms Butler would be entitled to a 29 per cent interest in the Property.

[8] On 1 June 2007, Mr Fraser and Ms Butler entered into a deed recording their arrangement. The deed records the background as described above, including the particular amounts required to satisfy the Public Trust ($60,711) and the Official Assignee in respect of Mr Fraser’s creditors ($84,513.37). A mortgage…

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 Fraser v Butler

Details

AGLC: Fraser v Butler [2017] NZHC 944
Case: [2017] NZHC 944
Decision Date: 10 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Fraser v Butler involved a dispute over a farming property in Waimata Valley in Gisborne. The plaintiff, Mr Fraser, sought an order for the sale of the property and directions on how the proceeds from the sale were to be divided. Mr Fraser, who suffered from dementia, was a majority share co-owner of the property, but he had not derived any benefit from the land. The defendant, Ms Butler, was occupying the property exclusively with her family and held a 29% share of the property for herself and the remaining 71% for Mr Fraser.

The court was required to decide whether to make an order for the sale of the property, how to divide the proceeds of the sale, and whether to make a determination on the relative adjustments to determine the plaintiff's share while giving the defendant the opportunity to buy the plaintiff's share.

The court, after considering the respective shares of Ms Butler and Mr Fraser, the hardship to be caused to either of the parties, and the contributions made by the parties, found that an order for sale should be made under s 339(1)(a) of the Act for the following reasons: Mr Fraser should not continue to receive no benefit from his majority share of the property, as he was now disabled and in a rest home; Mr Fraser had received no benefit from the property, his only asset, for eight years nine months; Ms Butler had had all the benefit of the property for eight years nine months, without paying any rental to Mr Fraser; and although Ms Butler had paid all the outgoings on the property and the BNZ mortgage payments, she had received the rents paid by the tenant on the property and payments towards the living expenses of her household from her two children and one boarder.

The court made the following orders for sale: Mr Ross Fraser was to obtain a registered valuation of the Property and serve it on Ms Butler; within 30 days of receipt of the valuation, Ms Butler could make a formal offer to purchase Mr Fraser's share at market value; if Ms Butler did not exercise the option to purchase or formally advised Mr Ross Fraser that she did not wish to make a formal offer, Mr Ross Fraser was to organise, with a reputable real estate agent of his choosing, a public auction for the sale of the property at 1572 Waimata Valley Road, Waimata Valley, Gisborne; the date of the sale may be determined by the plaintiff or his agent but shall be set having regard to the time reasonably required by Ms Butler to find alternative accommodation, being no more than eight weeks from the date of receipt of the valuation; and Ms Butler was to cooperate with all aspects of the sale process. When the property was sold, the proceeds of sale were to be distributed as follows: payment of any real estate agent's commission and legal fees incurred by the vendors in connection with the sale and transfer of the property; payment of any marketing costs in relation to the sale and payment of the valuation fee; and the balance of the sale proceeds were to be divided as 29% plus $7,000 payable to Ms Butler and 71% payable to Mr Fraser, less $7,000.

Orders