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Holland v Holland

Holland v Holland

Case [2017] NZHC 1037 18 May 2017

Equitable Interests

Trusts & Equity

Specific Performance

Admissibility of Evidence

Costs

Property Law

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-152 [2017] NZHC 1037

UNDER The Property Law Act 2007

BETWEEN

DAVID HOLLAND, CHARLES HOLLAND AND TUI PATRICIA HOLLAND

Plaintiffs

AND

GENE MANGU HOLLAND First Defendant

GENE MANGU HOLLAND as administrator and trustee for the estate of NGAHUIA BETTY HOLLAND

Second Defendant

Hearing: 18 May 2017

Appearances:

A M Cook for the Plaintiffs
No appearance for the Defendants
J Niemand for Shane and Dean Livingstone (Interested Parties)

Judgment:

18 May 2017

JUDGMENT OF GORDON J

Solicitors: O’Sheas, Hamilton
Niemand Peebles Hoult, Hamilton

Copy to: Defendant

HOLLAND, v HOLLAND [2017] NZHC 1037 [18 May 2017]

Introduction

[1] The plaintiffs are the part-owners of a property at 4 Couch Street, Ngaruawahia.1 The defendant is a part-owner of the property in his personal capacity and holds a further share of the property on trust (Thomas’ share). The plaintiffs seek a declaration that the defendant has breached his duties as trustee, as well as an order requiring the defendant to transfer Thomas’ share to the beneficiaries of the trust. Alternatively, the plaintiffs seek an order from this Court
pursuant to s 339 of the Property Law Act 2007 (PLA) directing the sale of the property and division of proceeds amongst the parties.

[2] The parties to this application all share the same last name and for that reason it is convenient to refer to them by their first names. The plaintiffs are David, Charles and Tui. The defendant is Gene.

[3] Gene has taken no steps in the proceeding to date. Accordingly, the hearing before me proceeded by way of formal proof.

Factual background

[4] The property was previously owned by the plaintiffs’ parents, Percy and Elizabeth Holland. Percy and Elizabeth had six children: Thomas, Ngahuia, Mihi, David, Charles and Tui. The children were raised on the property.

[5] Percy and Elizabeth passed away in 1977 and 1981 respectively. Following Elizabeth’s death, the property was transferred to each of the children in equal shares, in accordance with Elizabeth’s will. Tui lives in the property and has done so since 1981. Ngahuia, and her son Gene, moved into the property in 1983 and Gene has remained there to the present day.

[6] Thomas died in 2002. His will relevantly provided as follows:

1 Being Lot 8 Deposited Plan 6259 with certificate of title SA1792/27.

3.1 I GIVE AND BEQUEATH the following:

…

(iv) the interest in the house and land owned by me at the date of this my Will situated and known as number 4 Couch Street, Ngaruawhia (sic)

TO MY SISTER NGAHUIA BETTY HOLLAND to be held by her in trust for such of my brothers and sisters, MIHI, NGAHUIA, CHARLES, TUI and DAVID and their issue as she may in her absolute discretion think fit and if more than one then as tenants in common in whatever proportion she shall think fit.

3.2 IF my sister NGAHUIA BETTY HOLLAND dies before making her selection then the trust fund will be…

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 Holland v Holland

Details

AGLC: Holland v Holland [2017] NZHC 1037
Case: [2017] NZHC 1037
Decision Date: 18 May 2017

CaseChat Overview and Summary

The High Court of New Zealand heard a case between David, Charles, and Tui Holland, who are part-owners of a property in Ngaruawahia, and Gene Mangu Holland, who is also a part-owner of the property. The plaintiffs sought a declaration that Gene had breached his duties as a trustee, and alternatively, an order to sell the property and divide the proceeds among the parties. The plaintiffs claimed that Gene neglected to transfer a part of Thomas’ share to them, and they sought an order requiring Gene to transfer Thomas’ share to the beneficiaries of Thomas’ will. Gene argued that Ngahuia, his mother and the trustee of Thomas’ share, intended to keep the share for herself.

The court found that the plaintiffs' first cause of action was misconceived, as there was no principle of trust law that required Gene, as trustee, to transfer legal title in the trust property to the beneficiaries of the trust. However, the court granted a declaration as to the equitable interests held by each of the beneficiaries. The court found that Thomas’ will required Thomas’ share to be held upon trust for the plaintiffs, Gene, and Mihi’s children in equal shares.

The plaintiffs also sought orders directing the sale of the property and a distribution of the proceeds among the family members in specified proportions. The court found that the fairest way of resolving the present conflict was to make an order for the sale of the property and division of the proceeds among the plaintiffs and Gene in proportion to their respective legal and equitable interests in the property. The court made a declaration of the equitable interests in Thomas’ one-sixth share in the property, and granted the application under s 339 of the Property Law Act 2007 to direct the sale of the property and division of the proceeds.

The court ordered that the plaintiffs were to obtain a registered valuation of land by a valuer of their choosing within eight weeks of the date of the order. The reserve price for the sale of the property was to be fixed at a sum equal to 90 per cent of that specified in the valuation. The property was to be sold by a reputable real estate agent of the plaintiffs’ choice, by auction or tender at the plaintiffs’ choice. The proceeds of the sale were to be disbursed in a specified priority and manner, with the balance of the sale proceeds to be divided among the plaintiffs and Gene in proportion to their respective legal and equitable interests in the property. The plaintiffs were entitled to costs on a 2B basis with disbursements in accordance with the schedule of costs filed with the draft orders.

Orders