Jones v Tuhakaraina - [2023] NZHC 1462

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-139

[2023] NZHC 1462

UNDER Rule 19.5 of the High Court Rules 2016 and under s 339 of the Property Law Act 2007

IN THE MATTER

of a property at 41 Walker Road West, Aongatete

BETWEEN

IVAN WALTER CHARLES JONES and

ANDREW ROSS WARES as trustees of the IWC TRUST
Applicants

AND

ROSINA ANNE TUHAKARAINA

Respondent

Hearing: 7 June 2023

Appearances:

L Blomfield for Applicants (via VMR) R Tuhakaraina in Person (via VMR)

Judgment:

13 June 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 13 June 2023 at 2:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Sainsbury Logan & Williams, Napier Copy to: R Tuhakaraina

JONES v TUHAKARAINA [2023] NZHC 1462 [13 June 2023]

[1]On 4 November 2022, the plaintiffs filed:

(a)An interlocutory application on notice for leave to commence proceedings by originating application;

(b)An originating application for orders under ss 339 – 343 of the Property Law Act 2007 (the Act);

(c)An affidavit of Ivan Walter Charles Jones in support of the application for leave to commence proceedings by originating application; and

(d)A memorandum of counsel in support of the originating application under r 19.5 of the High Court Rules.

[2] The above documents, together with a letter addressed to the respondent from the Tauranga High Court dated 21 November 2022 advising her that this matter would be called in the Associate Judge’s list on Monday 5 December 2022, were served personally on the respondent on 29 November 2022.

[3]No formal steps have been taken by the respondent to oppose the applications.

Background

[4] The applicants seek an order for the sale of the property at 41 Walker Road West, Aongatete (the Property). The Property is owned by Ivan Walter Charles Jones and Andrew Ross Wares as trustees of the IWC Trust (the Trust) as to a three-fifths share and Rosina Anne Tuhakaraina as to a two-fifths share.

[5]The issues are straightforward.

[6]The facts are not disputed.

[7] The Property was purchased by the parties pursuant to a Separation and Relationship Property Agreement (the Agreement) dated 20 November 2018. The respondent’s share of the purchase price was funded by a term loan from the Trust on

agreed terms. In that Agreement, the respondent agreed that if she defaulted in payment of the mortgage and that default remained unremedied for two or more months:

(a)She would vacate the Property upon receiving four weeks’ written notice from the Trust to do so (Clause 3.1.4).

(b)The Property would then be listed for sale (Clause 3.1.4).

(c)The sale proceeds were to be applied as to 60 per cent to the Trust and the balance applied to the respondent’s mortgage, before payment to her (Clause 3.1.12).

[8] The respondent defaulted in payment of the mortgage and that default remained unremedied for more than two months. The respondent’s last mortgage payment was made on 20 March…

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.

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Details

Case: [2023] NZHC 1462
Decision Date: 13 June 2023

CaseChat Overview and Summary

Ivan Walter Charles Jones and Andrew Ross Wares, as trustees of the IWC Trust, brought an application against Rosina Anne Tuhakaraina seeking orders for the sale of a jointly-owned property at 41 Walker Road West, Aongatete. The applicants sought the orders under sections 339-343 of the Property Law Act 2007, following a default by the respondent in relation to the mortgage secured over the property. The central issue before the Court was whether the property should be sold and, if so, how the proceeds should be divided between the parties. The Court considered the factors outlined in section 342 of the Act, including the extent of the applicants' share in the property, the nature and location of the property, the number of co-owners and the extent of their shares, the hardship that would be caused by the refusal or granting of the order, the value of any contributions made by any co-owner to the cost of improvements to, or the maintenance of, the property, and any other matters the Court considered relevant. The Court held that an order for sale should be made, given the respondents' default and the fact that the sale was consistent with the terms of the Separation and Relationship Property Agreement. The Court also considered the applicants' discretion to determine how the proceeds of sale should be applied under section 343 of the Act, and noted that further applications would be necessary to detail the proposed method of sale, the price and/or reserve proposed, whether the Registrar of the Court should be authorised to execute documents on behalf of the defendant, and the quantification of any expenses of which the applicants seek reimbursement. The Court ordered that the property be sold, that the respondent vacate the property by 1 October 2023 to enable the applicants to assess what work needs to be done before the property can be properly marketed, and that the sale expenses be paid from the sale proceeds before those proceeds are applied in the manner set out in the order. The Court also noted that further applications would be necessary to detail the proposed method of sale, the price and/or reserve proposed, whether the Registrar of the Court should be authorised to execute documents on behalf of the defendant, and the quantification of any expenses of which the applicants seek reimbursement.

Orders