Harrison v Frieswijk - [2013] NZHC 3267

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-004089 [2013] NZHC 3267

UNDER the Property Law Act 2007

IN THE MATTER OF an application for an order for sale of property

BETWEEN DONALD ALEXANDER HARRISON Plaintiff

ANDWILHELMUS JOHANNES FRIESWIJK Defendant

Hearing: 6 December 2013

Appearances: B P Molloy and N T C Batts for the Plaintiff
R D Butler for the Defendant

Judgment: 9 December 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 9 December 2013 at 12.00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date:

HARRISON v FRIESWIJK [2013] NZHC 3267 [9 December 2013]

Introduction

[1] The plaintiff, Mr Harrison is the sole executor of the estate of John Frieswijk, who died in August 2009. The defendant, Wilhelmus (Bill) Frieswijk, is John’s father. They own, as tenants in common in equal shares, an unencumbered
6.7 hectare coastal property at Johnson’s Bay on Great Barrier Island. Mr Harrison seeks summary judgment on his claim for an order pursuant to s 339 of the Property Law Act 2007 directing an immediate sale of this property. The sale is sought to enable payment of debts due by the estate, particularly a debt to Westpac secured by a mortgage over the estate’s nearby 63 hectare property at
329 Cape Barrier Road.

[2] John’s widow, Kim Frieswijk, has a life interest in the house and curtilage on the Cape Barrier Road property. Mr Harrison is concerned that if an immediate order for sale is not made in respect of the Johnson’s Bay property, Westpac will proceed with a mortgagee sale of Cape Barrier Road, defeating the life interest. Westpac has served a Property Law Act notice which has now expired.

[3] Mr Harrison claims that the estate does not have any other assets that could be realised readily to satisfy the amount owed to Westpac, approximately $73,000. Although plant and chattels with a depreciated value of $140,000 form part of the estate, Mr Harrison has not been able to realise these items because he says they were taken without his consent by John’s two adult sons, Andre and Clinton, who are the residuary beneficiaries. He contends that a sale of the estate’s undivided half share in the Johnson’s Bay property is not a practical option and that the other options that have been identified are not feasible because they would require Westpac’s consent. Mr Harrison recognises that Bill has a long association with the property and a sentimental attachment to it but contends that his interests must be sacrificed in favour of the interests of John’s widow who wishes to preserve her life interest and remain living at the Cape Barrier Road property.

[4] Bill is strongly opposed to the property being sold. The land has been in family ownership since he purchased it over 57 years ago and he wants to preserve it for the future benefit of the family. He is also concerned that the market is currently

depressed for properties of…

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 Harrison v Frieswijk

Details

AGLC: Harrison v Frieswijk [2013] NZHC 3267
Case: [2013] NZHC 3267
Decision Date: 9 December 2013

CaseChat Overview and Summary

The plaintiff, Donald Alexander Harrison, as the sole executor of the estate of John Frieswijk, sought an order for the sale of a 6.7 hectare coastal property at Johnson's Bay on Great Barrier Island, co-owned with the defendant, Wilhelmus Johannes Frieswijk, John's father. The application was brought under section 339 of the Property Law Act 2007, seeking to satisfy debts owed by the estate, particularly a mortgage secured by Westpac over a nearby property. The defendant opposed the sale due to his long-standing attachment to the property and the depressed market conditions for such properties. The legal issue was whether the plaintiff's claim was so overwhelming that an order for immediate sale was inevitable, and if denying the defendant the opportunity to contest the sale at trial would cause injustice.

The court found that while the estate owned half of the property, this alone was not sufficient to mandate a sale. The nature and location of the property, along with the market conditions, indicated that a forced sale would likely result in significant financial loss. The court also noted the defendant's substantial personal and sentimental investment in the property, as well as his offer to purchase the estate's share in 2009. Furthermore, the court could not adequately assess the relative hardships or alternative options without further evidence and submissions. Consequently, the application for summary judgment was dismissed, and the matter was to proceed to trial. Costs were reserved.

Orders