Jones v Tuhakaraina - [2023] NZHC 3440

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-139

[2023] NZHC 3440

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

Counsel: L Blomfield for Applicants

Judgment:
(On the papers)

30 November 2022

JUDGMENT OF WOOLFORD J

[Supplementary orders]

This judgment was delivered by me on Thursday, 30 November 2023 at 9:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Sainsbury Logan & Williams (L Blomfield), Napier Copy to: Respondent

JONES v TUHAKARAINA [2023] NZHC 3440 [30 November 2022]

[1] In a judgment dated 13 June 2023,1 I granted an application by the trustees of the IWC Trust for an order for the sale of the property at 41 Walker Road West, Aongatete (the property), under s 339 of the Property Law Act 2007 (the Act).

[2]The orders made were as follows:

(a)The property at 41 Walker Road West, Aongatete, is to be sold.

(b)The respondent is required to vacate the property by 1 October 2023 so the applicants can assess what work needs to be done before the property can be properly marketed and then to undertake that work;

(c)The sale expenses are to be paid from the sale proceeds before those proceeds are applied in the manner set out below:

(i)The net proceeds shall be applied as to 60 per cent to the applicants and the balance applied to the respondent’s mortgage before payment to her. If there has been any damage to the property caused by or during the respondent’s occupation of the property, the costs of those repairs shall be deducted from the respondent’s share of any sale proceeds.

(ii)Costs are to be on a 2B basis. Such costs are to be deducted from the respondent’s share of the net sale proceeds.

[3] I observed that supplementary orders under s 343 of the Act may be required, including to address the following matters:

(a)the proposed method of sale of the property;

(b)the price and/or reserve proposed and details of the method by which that has been arrived at;

1 Jones v Tuhakaraina [2023] NZHC 1462.

(c)whether it is proposed that the Registrar of the Court should be authorised to execute documents on behalf of the respondent; and

(d)the quantification of any expenses of which the applicants seek reimbursement, such as work done on the property so that it can be properly marketed, supported by affidavit evidence as to the amount of compensation sought.

[4]The applicants now seek supplementary orders under s 343 of the Act:

(a)That the property at 41 Walker Road West, Aongatete be sold by deadline sale;

(b)Setting a reserve of $725,000 for the sale of the property;

(c)Authorising the Registrar of the Court to…

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 3440
Decision Date: 30 November 2022

CaseChat Overview and Summary

In the case of Jones v Tuhakaraina, the applicants, Ivan Walter Charles Jones and Andrew Ross Wares, trustees of the IWC Trust, sought supplementary orders for the sale of a property located at 41 Walker Road West, Aongatete. The property is jointly owned by the applicants and the respondent, Rosina Anne Tuhakaraina. The applicants sought these orders under section 343 of the Property Law Act 2007 following an earlier order for sale made by the Court on 13 June 2023. The primary legal issues before the court were whether the proposed supplementary orders for sale were appropriate and necessary, considering the respondent's lack of co-operation and the need to facilitate the sale of the property.

The Court examined the respondents' lack of compliance with the previous order to vacate the property by 1 October 2023, and her overall lack of co-operation with the sale process. The applicants had engaged professionals to assess and prepare the property for sale, including a market valuation, a property appraisal, and a quote for necessary repairs. The Court found that the supplementary orders were necessary to ensure the sale of the property could proceed in an orderly manner given the respondent's lack of cooperation. The Court approved the proposed supplementary orders, which included a deadline sale, setting a reserve price, authorizing the Registrar to execute documents on behalf of the respondent, and deducing outstanding rates and water rates from the respondent's share of the sale proceeds. Costs were also awarded in favor of the applicants.

The Court's decision provided clear direction for the sale of the property, addressing the applicants' concerns about the respondent's lack of co-operation and ensuring the sale process could proceed efficiently. The supplementary orders were tailored to facilitate the sale while also considering the need to manage any potential damage to the property caused by the respondent. The Court's approval of the proposed orders and the awarding of costs to the applicants underscored the importance of co-operation in co-ownership disputes and the Court's role in ensuring fair and orderly resolution of such matters.

Orders