IRENE NANCY TULLOCH, LYNDA MARIE WALKER and STEVEN GEORGE TULLOCH s / s AND JAMES SHALLCROSS TULLOCH /

[2024] NZHC 2637

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002696

[2024] NZHC 2637

BETWEEN

IRENE NANCY TULLOCH, LYNDA MARIE WALKER and STEVEN GEORGE TULLOCH
Plaintiffs / Applicants

AND

JAMES SHALLCROSS TULLOCH

Defendant / Respondent

Hearing:	6 September 2024
Appearances:	N Tetzlaff for the Plaintiffs / Applicants Defendant / Respondent in Person
Judgment:	13 September 2024

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 13 September 2024 at 3.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Smith & Partners, Auckland

TULLOCH v TULLOCH [2024] NZHC 2637 [13 September 2024]

Introduction

[1]    The plaintiffs (Irene, Lynda, and Steven) and the defendant (James) are siblings and co-owners of  a  property  at  Te  Atatū  South,  Auckland.1  Their  mother,  Nancy Tulloch, resided at the property until shortly before she died in May 2022. Irene, Lynda, Steven, and James jointly own four-fifths of the property; Irene owns a further one-fifth. The plaintiffs say that Irene has an additional share because she agreed to pay all outgoings for the property while Nancy resided there and did so.

[2]    The plaintiffs want to sell the property and to distribute the proceeds of sale according to their proportionate ownership shares. They seek orders under s 339(1) of the Property Law Act 2007 (the PLA). They also apply for ancillary orders under s 343 of the PLA to facilitate the sale and for compensation. The plaintiffs apply for summary judgment on the claim on the basis that James has no defence.

[3]    James refuses to facilitate the sale of the property unless Irene relinquishes her additional one-fifth share. He maintains that Irene acquired the additional share illegally and without his consent. He also opposes summary judgment on the grounds that he has an extant application for judicial review of a decision of the Legal Complaints Review Officer concerning the transfer of the one-fifth share to Irene.

[4]    James counterclaims for his share of lost rental income based on his claim that the plaintiffs should have rented the property out from July 2022. The plaintiffs seek summary judgment in their favour on this counterclaim.

[5]    The central question is whether this is an appropriate case to exercise the s 339 discretion to order the sale of the property and division of the proceeds among the co‑owners, according to their ownership shares, and to make the ancillary orders sought. To answer this, I am required to consider the mandatory relevant considerations in s 342 of the PLA and the defence raised by James.

1      To prevent confusion, I have referred to the parties by their first names throughout. No disrespect is intended.

Background

[6]    On or about 20 March 2007, Irene and her daughter Emily Rose Mercer purchased the property at Roberts Road, Te Atatū South, Auckland. The property comprises a residential cottage on freehold land. The property was occupied by Emily Rose until around August 2007.

[7]    Subsequently, arrangements were made to enable Nancy to leave her Metlifecare licence-to-occupy unit in Titirangi and reside at the property, to be closer to the plaintiffs, who at that time all lived in Te Atatū South or Henderson.

[8]    In September 2007, Irene and Emily Rose entered into an agreement for sale and purchase of the property as vendors, with Nancy as purchaser.

[9]    However, instead of Nancy taking legal title to the property, Nancy nominated the four siblings to purchase the property. The plaintiffs have filed affidavits explaining that the reason the siblings took legal title of the property was to maximise the possibility of Nancy qualifying for subsidised residential care, and to provide a future inheritance for the siblings.

[10]   A law firm called Kiwilegal acted for Nancy and the siblings in relation to the purchase of the  property,  including  preparing  and  arranging  execution  of  a  Deed of Nomination, a Deed of Acknowledgement of Debt, and registering the transfer of title from Irene and Emily as vendors to the four siblings as purchasers.

[11]   The Deed of Nomination, dated 5 March 2008, records that Nancy nominated the siblings as purchaser under the agreement for sale and purchase, and the siblings accepted the nomination. The document is signed by Nancy, Irene, Steven, Lynda, and James. Relevantly, James’s signature is witnessed by a Justice of the Peace.

[12]   The Deed of Acknowledgement of Debt records that Nancy agreed to lend the siblings the sum of $248,000 to purchase the property, but that unless demand was made, the debt would be forgiven progressively until 2018. Again, this deed was signed by Nancy and the four siblings. James’s signature was again witnessed by a Justice of the Peace.

[13]   On 7 March 2008, title to the property was transferred to Irene, Steven, Lynda, and James as to a joint four-fifths share, and to Irene as to a one-fifth share.

[14]   Irene, Lynda, and Steven all depose that the reason Irene received an additional one-fifth share was to compensate her for assuming the financial burden of various costs relating to the property, and to pay these while Nancy occupied the property. Irene deposes that during Nancy’s occupation of the property, before and after the settlement, she paid all council rates, house and contents insurance, and other incidental costs.

[15]   Nancy moved out of the property to residential care on or about 10 March 2022, and passed away on 23 May 2022.

[16]   Since March 2022, the property has remained predominantly vacant, except the occasional short-term use by the plaintiffs and family.

[17]   Stephen and Irene depose that from March 2022 the plaintiffs attempted to convince James that the property should be sold.

[18]   By the end of June 2022, the plaintiffs had readied the property to be marketed for sale. However, they suspended plans to sell the property when James made a complaint to the New Zealand Law Society Standards Committee concerning Irene’s involvement in the transfer of the property to the siblings in 2008. James’ complaint was not upheld by the Legal Complaints Review Officer, but he has sought judicial review of that decision in this Court. The application for a judicial review will be heard in November 2024.

[19]   On 10 August 2023, the plaintiffs’ solicitor wrote to James recording that the plaintiffs wished to progress the marketing of the property for sale by negotiation, providing a copy of a property valuation report, a copy of a comparative market appraisal by Barfoot & Thompson, and inviting James to facilitate a negotiated sale of the property within the price range of the appraisal.

[20]   On 31 August 2023, James acknowledged receipt of the letter and accompanying documents and advised that he would not consent to the sale of the property on the terms proposed.

[21]   A further letter, dated 6 September 2023, was sent to James by the plaintiffs’ solicitor again inviting James to co-operate to obtain a negotiated sale of the property. James acknowledged receipt of the letter and advised that he would not consent to the sale of the property and would ignore any further correspondence.

Legal principles

Property Law Act 2007

[22]   The plaintiffs bring their application pursuant to s 339 of the PLA which provides:

339     Court may order division of property

(1)A court may make, in respect of property owned by co-owners, an order—

(a)for the sale of the property and the division of the proceeds among the co-owners; or

(b)for the division of the property in kind among the co-owners; or

(c)requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.

(2)An order under subsection (1) (and any related order under subsection (4)) may be made—

(a)despite anything to the contrary in the Land Transfer Act 2017; but

(b)only if it does not contravene section 340(1); and

(c)only on an application made and served in the manner required by or under section 341; and

(d)only after having regard to the matters specified in section 342.

(3)Before determining whether to make an order under this section, the court may order the property to be valued and may direct how the cost of the valuation is to be borne.

(4)A court making an order under subsection (1) may, in addition, make a further order specified in section 343.

(5)Unless the court orders otherwise, every co-owner of the property (whether a party to the proceeding or not) is bound by an order under subsection (1) (and by any related order under subsection (4)).

(6)An order under subsection (1)(b) (and any related order under subsection (4)) may be registered as an instrument under—

(a)the Land Transfer Act 2017; or

(b)the Deeds Registration Act 1908; or

(c)the Crown Minerals Act 1991.

[23]   The relevant provision in this case is subs (1)(a), seeking an order for the sale of the property and division of the proceeds among co-owners.

[24]   Section 339(2) sets out the circumstances in which an order under s 339(1) may be made and requires the Court to have regard to the matters specified in s 342.

Those matters are:2

(a)the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:

(b)the nature and location of the property:

(c)the number of other co-owners and the extent of their shares:

(d)the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:

(e)the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:

(f)any other matters the court considers relevant.

[25]   When making an order pursuant to s 339(1), the Court may also make additional orders under s 343 which provides:

343     Further powers of court

A further order referred to in section 339(4) is an order that is made in addition to an order under section 339(1) and that does all or any of the following:

2      Property Law Act 2007, s 342.

(a)requires the payment of compensation by 1 or more co-owners of the property to 1 or more other co-owners:

(b)fixes a reserve price on any sale of the property:

(c)directs how the expenses of any sale or division of the property are to be borne:

(d)directs how the proceeds of any sale of the property, and any interest on the purchase amount, are to be divided or applied:

(e)allows a co-owner, on a sale of the property, to make an offer for it, on any terms the court considers reasonable concerning—

(i)the non-payment of a deposit; or

(ii)the setting-off or accounting for all or part of the purchase price instead of paying it in cash:

(f)requires the payment by any person of a fair occupation rent for all or any part of the property:

(g)provides for, or requires, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under section 339(1).

Summary judgment

[26]Rule 12.2(1) of the High Court Rules 2016 provides:

The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[27]   The relevant principles governing a summary judgment application are well established:3

(a)The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried. The Court must be left without any real doubt or uncertainty.

(b)The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated.

3      Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].

(c)The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility — as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it.

[28]   The defendant is under an obligation to lay a proper evidential foundation for the defence in the affidavits filed in support of the notice of opposition.4

[29]   The Court of Appeal held in Bayly v Hicks that the summary judgment procedure is not well suited to s 339 applications because on such applications the Court must exercise a broad discretion and consider a variety of factors and possible outcomes.5 The Court contrasted this with the  previous  position  under  the  Partition Acts 1539 and  1540  and  the  discretion  given  by  s  140  of  the  Property Law Act 1952 to order sale of the land instead of partition:6

As the commentaries observe, much of the case law prior to 2007 focusing as it did on the limited choices available to the court, will now be rendered otiose by the new discretion clearly given by s 339. The previous division between the Partition Acts, which dealt with division between co-owners and the Property Law Act 1952, which related to sale to third parties, has gone. So has the rigid requirement of the past that the court must make orders if the criteria set out in the Acts were proved. This has been replaced by a broad discretion, where the relevant considerations are set out in s 342.

(footnote omitted)

[30]   In Anderson v Anderson, Associate Judge Bell commented that the Court could not grant summary judgment of a s 339 application unless there is only one possible outcome.7

4      Middleditch v New Zealand Hotel Investments Ltd (1992) 5 PRNZ 392 (CA) at 394.

5      Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [31]–[33].

6 At [25].

7      Anderson v Anderson [2020] NZHC 788 at [9].

[31]   In Coffey v Coffey, Associate Judge Osborne (as he was then) reviewed four decisions where summary judgment was granted for division of property pursuant to s 339 of the PLA.8 He concluded that:9

There will not often be such clear concessions or indisputable facts as to effectively dictate to the Court exactly how the discretion under s 339 of the Act (or in relation to further orders under s 343) should be exercised. The four cases illustrate that there will be situations where such clarity of appropriate outcome occurs. The question I must decide is whether there is clarity of appropriate outcome in this case.

[32]   After carefully considering the facts relating to the parties’ co-ownership of the property, his Honour held that such clarity existed in that case.

Section 342 considerations

Number of co-owners and extent of their shares

[33]   James has a one-fifth share of the property as against the one-fifth share of each of Lynda and Steven, and the two-fifths share of Irene. The plaintiffs want to sell the property. By refusing to consent to the sale, James is affecting the interests of his three siblings and collectively four-fifths of the property.

[34]   Relevantly, James does not maintain in his evidence or in any of the pre‑existing communications in evidence that the siblings should retain the property. Rather, his position is that he will not agree to the sale unless Irene relinquishes her additional one-fifth share.

[35]   In a letter to the plaintiffs’ solicitor on 31 August 2023, James states that he will not agree to the sale of the property while Irene retains the additional one-fifth share.   James  repeats  this  position  in  an  email  to  the  plaintiffs’  solicitor  on    6 September 2023, and again in an email dated 27 February 2024, stating that he “will not agree to the sale of the property until there is an equal division of shares.”

8      Coffey v Coffey [2012] NZHC 1765 at [21]–[44].

9 At [45].

[36]   Indeed, James states in his notice of opposition to the application for summary judgment that he only agrees to the sale of the property under the proviso of equal distribution of shares.

[37]   It is clear, therefore, that James does not oppose the sale of the property as such — he opposes distribution of the sale proceeds according to the proportionate legal ownership of each of the siblings.

Nature and location of the property

[38]   The property is a two-bedroom cottage built sometime in the 1920s situated on a freehold 349 square metre section in Te Atatū South. A comparative market analysis prepared by Barfoot & Thompson in July 2023 estimates the probable selling price as between $600,000 and $695,000.

[39]   James has no personal connection with the property. He has lived in Australia for many years and does not indicate any intention to return to Auckland.

[40]   The property is vacant, and none of the parties derive any meaningful benefit from it.

Hardship to plaintiffs by refusal of order and to the defendant by making the order

[41]   The plaintiffs are unanimous that they want to sell the property because it is effectively a liability. Their evidence, undisputed by James, is that the property was acquired to house Nancy, and it was never intended to be a long-term acquisition or investment.

[42]   The plaintiffs are also unanimous that they do not want to rent the property to tenants, because they do not want the complications of being landlords. They say that in any case the property is not currently legally tenantable, and it would require considerable work to bring it up to standard, including to meet Healthy Homes requirements. Irene has put in evidence a Healthy Homes self-assessment which indicates that material improvements would be required to make the house “HomeFit”.

[43]   The plaintiffs submit that there is a risk that the value of the property could decrease over time, either by market fluctuations or by vandalism or robbery of the property as a vacant property. They say that the value of the property has already fluctuated and fallen since the date of the Barfoot & Thompson appraisal.

[44]   The plaintiffs emphasise that there are ongoing maintenance burdens and costs for the property. Irene deposes that she continues to pay rates, insurance, water, electricity, and other incidental costs of the property. The plaintiffs’ evidence is consistent that while Irene was compensated by her additional share during their mother’s occupation, she should not be liable for these costs any longer.

[45]   Furthermore, they submit that the property is a point of contention between the siblings, and it would be beneficial for family reconciliation to resolve this issue.

[46]   It is relevant that Lynda and Steven (who is retired) do not benefit from, or have any responsibility for, Irene’s one-fifth share. However, they are “caught in the crossfire” of James’s dispute with Irene.

[47]   James’ counterclaim is also relevant. James alleges that the plaintiffs should have tenanted the property. He counterclaims for his proportionate share of the loss of potential rental from July 2022, on the basis that the plaintiffs should have entered into a tenancy for the property from that date.

[48]   However, James does not go so far as to say that the property should be retained as an investment property in the long-term. His counterclaim relates to historical lost rental only.

Contributions to improvements or the maintenance of property

[49]   Irene claims to have incurred costs for insurance, rates, and maintenance. The plaintiffs’ position is that she has been compensated for these while her mother was in residence, and therefore these contributions should not be taken into account.

[50]However, the plaintiffs seek the following orders for compensation:

(a)that James pay Irene an amount of compensation proportionate to his ownership interest in the property of the cost of rates, utilities, and insurance   for   the   property   from   around   1   June   2022   to     31 December 2022 (on the basis that all the siblings should have been paying their proportionate share of these costs once Nancy ceased living at the property);

(b)that James pay Irene an amount of compensation equivalent to the cost of rates, utilities and insurance for the property from 1 January 2023 until the sale of the property (on the basis that the property was ready to be sold in June 2022, and it is reasonable to consider that it would have sold within six months, by the end of 2022, had James not obstructed the sale); and

(c)that James pay compensation to the plaintiffs for the loss of the use of proceeds of the sale of the property between 1 January 2023 (when the property could reasonably have been sold, had the defendant consented to the sale) to the date of the sale of the property.

[51]   There is some evidence of Irene paying Council rates (in the form of bank statements) and insurance policies (in the form of receipts), but no evidence of the total sums she has paid. Mr Tetzlaff proposes filing a further affidavit from Irene confirming the specific amounts she has paid, if the Court is minded to make orders for compensation.

Any other relevant matters

[52]   James alleges that Irene acquired the one-fifth share by fraudulent and illegal means. He says that he was unaware that Irene was to acquire an additional one-fifth share in 2008 when the nomination took place; and he did not agree to this part of the arrangement. He says that he does not recall seeing any document advising him that Irene would take a further one-fifth share; and that he assumed the remaining one-fifth share would be held by Nancy. James further says that a deed of family arrangement was never executed and that he never did a search of the title to the property and only became aware that Irene had a separate one-fifth share in early 2022.

[53]   The plaintiffs say that Irene’s legal ownership of the one-fifth share is determinative pursuant to s 62 of the Land Transfer Act 1952 and/or s 51 of the  Land Transfer Act 2017. They submit that James is barred from challenging Irene’s ownership of the one-fifth share by ss 7(2) and 8(1) of the Limitation Act 1950.

[54]   In terms of the date of James’s knowledge, they say that his assertion that he was unaware that Irene was taking the one-fifth share in 2008 is lacking in credibility. He executed the Deed of Nomination and the Deed of Acknowledgement of Debt. Further, they have put in evidence the cover letter from Kiwilegal to James enclosing these documents (but not the enclosures). The letter states that it encloses the Deeds and a Client Authority and Instruction form for James’s execution. Steven has put in evidence the front page of such a form which refers to the ownership structure.

[55]   The plaintiffs also say that Irene’s one-fifth share must have come to James’s attention when Irene obtained a mortgage over the property in January 2009.

Conclusion

[56]Drawing these strands together, I reach the following conclusions.

[57]   I am satisfied that an order for sale of the property is the only outcome here. No party wants to retain the property. Critically, James does not say that he wants to return to Auckland to live in the property and nor does he claim that the property should be retained for long-term investment purposes. Rather, he is blocking the sale because of his concern about Irene’s additional one‑fifth share.

[58]   However, the same clarity of outcome does not exist in relation to the proposed division of the proceeds of sale according to the siblings’ proportionate ownership shares. The Court’s determination of that part of the application potentially depends on disputed facts. Namely, the circumstances surrounding the four siblings taking a joint four-fifths share and Irene taking a further one-fifth share; and the date that James became aware of Irene’s additional one-fifth share.

[59]   James contends that there was no family agreement for Irene to have a further share; and that he was unaware of her further share until 2022. The plaintiffs dispute these assertions.

[60]   Unfortunately, the contemporaneous record before the Court is incomplete and ambiguous. The agreement for sale and purchase is not in evidence. The Deed of Nomination does not specify the ownership portions. Nor does the Deed of Acknowledgement of Debt. The cover letter from Kiwilegal to James refers to the siblings taking a four-fifth share; but it is silent about the remaining one-fifth share. The enclosures to the letter are missing. Steven has put in evidence the front page of a client authority form which refers to the ownership structure, but this document is incomplete and unsigned.

[61]   Even if James is barred from taking legal action to recover Irene’s one-fifth share because of the Limitation Act 1950, if there was something untoward about the way Irene came to hold this additional share (a matter which I cannot determine on the evidence before me) the Court could be expected to take this into account when exercising its discretion concerning the proceeds of sale. Especially if the Court was to accept that James only recently became aware of Irene’s additional share (again, a disputed fact which I cannot determine).

[62]   To grant summary judgment of the application for an order for division of the proceeds of sale, I must be satisfied that James has no defence, so there is only one way the Court will exercise the s 339 discretion. I am unable to reach that conclusion based on the disputed evidence and the incomplete record from 2008.

[63]   It follows that it is inappropriate to enter summary judgment of Irene and the plaintiffs’ claim for compensation. The sums claimed are not in evidence, but even if they were, any orders for compensation should be made alongside the orders dividing the proceeds of sale.

[64]   The same applies to James’s counterclaim. While I accept that there is no legal obligation on a property owner to lease a property, I consider that James’s claim for lost rental should also be determined alongside the plaintiffs’ claim for compensation.

I exercise my discretion to refuse summary judgment against James on his counterclaim.

Result

[65]   I grant summary judgment of the plaintiffs’ claim to an order for sale of the property and ancillary orders to facilitate the sale and deposit of the proceeds into an independent solicitors’ trust account.

[66]The balance of the application for summary judgment is dismissed.

Judicial settlement conference

[67]   In my view the remaining parts of the plaintiffs’ claim, and James’s counterclaim would benefit from a judicial settlement conference.

[68]   In July 2023, Barfoot and Thompson assessed that the property as having a value of between $600,000 and $695,000. If the property sells at the lower end of that range, the disputed one-fifth share is worth $120,000. Once the issue of compensation to Irene for the outgoings and costs she has paid on behalf of all the siblings since Nancy left the property is taken into account, the amount in dispute is even less. Based on the values involved, there is merit in the parties exploring settlement rather than continuing to incur litigation costs.

[69]   Accordingly, I direct the parties to attend a judicial settlement conference once the property is sold. The plaintiffs are to update the Court when this has occurred.

Orders

[70]I order:

(a)the co-owners to sell the property on the open market accordingly to the following process;

(b)the defendant to sign all documentation necessary to facilitate the sale of the property; and

(c)the proceeds of sale to be held in an independent solicitor’s trust account pending further order of the Court.

[71]The plaintiffs have the sole right to:

(a)select a real estate agency and agent to market and sell the property;

(b)determine the sale and marketing package, process, and timeframes and make all decisions incidental to the same; and

(c)arrange any minor repairs or maintenance to the property, which is in their opinion necessary to bring the property up to marketable standard.

[72]   The plaintiffs shall, without requiring the consent of the defendant, have the authority to:

(a)take all reasonable steps to obtain or renew insurance for the property;

(b)make any claim under a policy of insurance for the benefit of all parties as co-owners;

(c)communicate with the Auckland Council and/or providers of utilities for the property; and

(d)take all ordinary or reasonable steps that a property-owner may take in the course of appropriate administration of a property.

[73]The marketing and sale process for the property shall be:

(a)The agents shall provide a current market appraisal providing an estimated sale price range.

(b)Marketing shall proceed for six months from the date of listing the property for sale (Marketing Period).

(c)The plaintiffs have the right to accept any offer for the property within or exceeding the estimated sale price range set out in the market appraisal during the Marketing Period on conditions or terms as they see fit.

(d)At the conclusion of the Marketing Period, the plaintiffs may elect to extend the Marketing Period for no more than three months, at their discretion.

(e)Should no offer for the property be accepted by the plaintiffs during the Marketing Period the property will be offered for sale by public auction.

(f)The reserve price for the property in any auction shall be within the Agents’ market appraisal price range, as set by the plaintiffs.

(g)Any party may bid on the property at auction.

(h)If the property does not meet the reserve price the plaintiffs may reduce the reserve to a price acceptable to them. If no bids meet that reserve then the property would be remarketed for sale by negotiation with a guide price at the reserve.

[74]   The plaintiffs’ solicitors will appoint an independent solicitor to act on the sale of the property on behalf of all parties.

[75]   The independent solicitor will be noted as the acting solicitor on the agreement for sale and purchase of the property.

[76]   The independent solicitor will receive the deposit less agents’ commission and costs when a sale becomes unconditional and hold the deposit in their trust account until further order of the Court.

[77]   The independent solicitor will collect the settlement funds on settlement date and hold the settlement funds in their trust account until further order of the Court.

[78]The plaintiffs have leave to apply for further orders if necessary.

Associate Judge Gardiner