Hayes v MacAuley - [2022] NZHC 1386

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…

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 Hayes v MacAuley

Details

AGLC: Hayes v MacAuley [2022] NZHC 1386
Case: [2022] NZHC 1386
Decision Date: 14 June 2022

CaseChat Overview and Summary

Amy Hayes applied for a sale order and ancillary orders under sections 339 and 343 of the Property Law Act 2007, seeking to compel Paul MacAuley, her first cousin, to sell his half-share of a residential dwelling at 17 Owen Road, Kawerau. The property was purchased on 23 May 2018 for $205,000, with the parties holding equal shares as tenants in common. Hayes alleged that MacAuley initially met his co-ownership obligations but later disengaged entirely, moving out of the property and refusing to communicate, despite her repeated efforts to contact him. The primary issue for determination was whether the application should be granted. The court considered the legal principles under sections 339 and 342 of the Property Law Act, which empower the court to make orders for the division of property owned by co-owners and to have regard to specified factors in doing so. The court accepted that the co-ownership of the property was now untenable and granted Hayes' application. The court ordered that Hayes purchase MacAuley's 1/2 share in the property at market value as assessed by a registered valuer, with ancillary orders including the calculation of the settlement sum and the authorization for Hayes' solicitors to hold MacAuley's settlement sum until he provides instructions for payment. Costs of $19,956.50 and disbursements of $3,923.50 were awarded to Hayes.

Orders