IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2021-463-57 [2022] NZHC 1386
IN THE MATTER OF an application for a Sale Order pursuant to ss 339-343 of the Property Law Act 2007 BETWEEN
AMY MAY HAYES
Plaintiff
AND
PAUL ANTHONY MACAULEY
Defendant
Hearing: 12 April 2022 Appearances:
A Kershaw for the Plaintiff
Judgment:
14 June 2022
JUDGMENT OF HARVEY J
Te Whakataunga ā Kaiwhakawā Mātāmua Harvey
This judgment was delivered by me on 14 June 2022 at 10 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Hamertons Lawyers, Whakatāne
HAYES v MACAULEY [2022] NZHC 1386 [14 June 2022]
Introduction
Hei kōrero tīmatanga
[1] Amy Hayes has applied for a sale order and ancillary orders under ss 339 and 343 the Property Law Act 2007 regarding a residential dwelling at 17 Owen Road, Kawerau which she co-owns with the respondent Paul MacAuley, her first cousin. The property in issue is that was purchased on 23 May 2018 for $205,000. The parties are recorded on the title as tenants in common in equal shares. Ms Hayes says that the parties originally intended that the property was to be owned on an equal basis and that they would similarly make joint contributions to its outgoings including rates, insurance, maintenance and mortgage payments.
[2] The applicant contends that the respondent, while initially meeting his obligations as a co-owner, has since moved out of the property, failed to continue with his payments and entirely disengaged from communication, despite her repeated yet unsuccessful efforts at contact. Accordingly, the applicant considers that her only option is to seek a sale order to enable her to purchase the respondent’s share at a fair market value, subject to various deductions and set offs.
[3]The issue for determination is whether the application should be granted.
Procedural history
Ko te hātepe ture o te tono nei
[4] Ms Hayes filed her application on 22 July 2021. During the period 1 May 2020 to November 2021, as set out in affidavits dated 8 November 2021 and 5 January 2022, Ms Hayes attempted to contact and engage with Mr MacAuley via email and telephone, including through her solicitors, without success. On 24 November 2021,
Associate Judge Sussock issued orders for substituted service.1
[5] No response was received by the Court at any stage from Mr MacAuley. Accordingly, the application was set down to proceed by way of formal proof in the
1 Hayes v MacAuley HC Auckland CIV-2021-463-57, 24 November 2021 (Minute of Sussock AJ).
absence of any engagement from the respondent. Affidavits in support of the substantive proceeding were filed on 8 February 2022.
[6] Following the hearing and receipt of a draft order from counsel, and in light of concerns I had as to the fair calculation of the parties’ shares of the property, I issued a minute on 2 June last requesting a further submission from Ms Kershaw on the calculation of Mr MacAuley’s…
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