Gonsalves v Williams - [2014] NZHC 2376

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004993 [2014] NZHC 2376

BETWEEN
MICHELLE NOLA GONSALVES

Applicant

AND

PETER LESLIE WILLIAMS Respondent

Hearing: 28 July 2014

Appearances:

James Jackson for the Applicant
David Smythe for the Respondent

Judgment:

30 September 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by on 30 September 2014 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

GONSALVES v WILLIAMS [2014] NZHC 2376 [30 September 2014]

Introduction

[1] The applicant, Ms Michelle Gonsalves, is a half share, co-owner of

6 Aquarius Avenue, Glen Eden, Auckland.1

[2] The other half share, co-owner is her stepfather, the respondent, Mr Peter

Williams.

[3] Ms Gonsalves seeks an order to sell the property and share the proceeds equally between herself and Mr Williams.

[4] She seeks the order on the grounds that she has tried to resolve the matter with Mr Williams but he has refused to co-operate. Mr Williams wants to continue to live at Aquarius Avenue. He opposes the application on the grounds that he believes Ms Gonsalves’ interest in the property was improperly obtained and he has a life interest and is entitled to remain in the property. He is now aged 71 and suffers from a variety of serious health conditions. He wants to continue living at Aquarius Avenue for the rest of his life.

Background

[5] The property at 6 Aquarius Avenue, Glen Eden, Auckland is a modest ex- State, three-bedroom home. Mr Williams has been living there since it was first constructed. The house was built as part of a new state housing development in the suburb of Glen Eden in 1976.

[6] Mr Williams moved into Aquarius Avenue with his new wife, Nola, in August

1976. Nola Williams was Ms Gonsalves’ mother.

[7] Ms Gonsalves and Nola arrived in New Zealand from Australia in late- February 1969. Ms Gonsalves was then aged 9½.

[8] Seven years later, in 1976, Mr Williams married Nola and six months later the couple moved into their new home with Ms Gonsalves who, at that time, would have been about 17 years old. She lived there with her mother and stepfather for another two years.

[9] Although Ms Gonsalves always regarded 6 Aquarius Avenue as her home, she said she went there reluctantly because it was a long way out, she did not have a car and public transport was less than ideal. After a couple of years, Ms Gonsalves left home.

[10] Peter and Nola Williams gradually paid the mortgage off. The final payment came from Mr Williams’ superannuation and a redundancy payment. The house was initially owned by the couple as a joint family home.

[11] Then, in 1991, after 15 years of marriage, Peter and Nola Williams decided to divorce and the ownership of the house changed to tenants in common. By agreement, the couple continued to live at Aquarius Avenue although in different rooms.

[12] The evidence is contradictory about the nature of their…

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 Gonsalves v Williams

Details

AGLC: Gonsalves v Williams [2014] NZHC 2376
Case: [2014] NZHC 2376
Decision Date: 30 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Michelle Gonsalves, a half-share co-owner of a property at 6 Aquarius Avenue, Glen Eden, Auckland, applied for an order to sell the property and share the proceeds equally with Mr. Peter Leslie Williams, the other half-share co-owner. Ms. Gonsalves sought the order because she and Mr. Williams had been unable to resolve their differences regarding the property. Mr. Williams opposed the application on the grounds that he believed Ms. Gonsalves' interest in the property was improperly obtained and that he had a life interest in the property. The court was required to decide whether to make an order under s 339(1)(a) of the Property Law Act 2007, which allows the court to order the sale of property owned by co-owners and the division of the proceeds among the co-owners. The court also had to consider the mandatory, relevant considerations set out in s 342 of the Property Law Act 2007. These considerations included the extent of the share in the property of any co-owner, the nature and location of the property, the number of other co-owners and the extent of their shares, the hardship that would be caused to the applicant by the refusal of the order, the value of any contribution made by any co-owner to the cost of improvements to or the maintenance of the property, and any other matters the court considered relevant. The court found that the most influential consideration on the present facts was the assessment of relative hardship. The court concluded that the immediate hardship to Mr. Williams by making the order was outweighed by the hardship caused to Ms. Gonsalves if the court was not to make an order with immediate effect. The court made the following orders: (a) the property at 6 Aquarius Avenue, Glen Eden, Auckland, be sold; and (b) counsel file a joint memorandum by 5:00pm on Friday, 17 October 2014 as to the appropriate ancillary orders which should be made to give effect to (a) on the following issues: (i) the timing of the sale; (ii) the mechanism of sale and agents; (iii) the acting solicitors for the sale; (iv) the distribution of proceeds; (v) any other order the parties believe are necessary to give effect to (a); and (vi) costs.

Orders