Keery v Thomas - [2015] NZHC 113

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000567 [2015] NZHC 113

BETWEEN
COLIN KEITH KEERY

Plaintiff

AND

LYSANDRA JANE SUSAN THOMAS and MARK WILLIAM THOMAS Defendants

Hearing: 3 February 2015

Appearances:

D M Lester for Plaintiff
R C Dey for the first-named Defendant
No Appearance for the second-named Defendant

Judgment:

10 February 2015

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] The plaintiff (Mr Keery), the first-named defendant (Ms Thomas) and the second-named defendant (Mr Thomas) are owners of a property in Christchurch. The property was bought in 2006 and financed by Mr Keery providing $65,400, structured as an advance to Ms Thomas and Mr Thomas, who agreed to repay the debt on demand. Mr Keery has registered a caveat against the interest of Ms Thomas and Mr Thomas to support an equitable mortgage granted by them over their share in the property in his favour.

[2] Ms Thomas is a daughter of Mr Keery. Mr Thomas was her husband when the house was purchased but they separated a year later. At around that time a further caveat was registered against the interest of Mr Thomas by Legal Services Agency and shortly after that a statutory land charge was registered under s 32 of the Legal Services Act 2000. In 2010 a caveat was registered against the interests of Ms
Thomas and Mr Thomas by Dorchester Finance Limited (Dorchester). This caveat

C K KEERY v L J THOMAS and M W THOMAS [2015] NZHC 113 [10 February 2015]

supports an agreement to repay an advance by Dorchester to a third party which Ms

Thomas and Mr Thomas had guaranteed.

[3] For approximately four years, Ms Thomas and Mr Thomas (and later just Ms Thomas) lived in the house, and for the last four years Mr Keery has lived in the house with his wife. Ms Thomas and Mr Keery are estranged.

[4] At various times Mr Keery has paid sums of money to the first mortgagee, some of which are in dispute and some of which are accepted.

[5] The house was damaged in the earthquakes experienced in Christchurch in

2010 and 2011. A sum of $118,000 for repairs was received from the Earthquake Commission, and paid to the first mortgagee in reduction of its advance. The balance owing under the mortgage is approximately $92,000.

[6] In July 2014 a firm of registered valuers instructed by Mr Keery assessed the value of the property at $320,000, including $5,000 for chattels, on the basis that repairs necessitated by the earthquakes had been fully repaired.1

[7] Mr Keery now seeks an order that he purchase the property from Ms Thomas and Mr Thomas. He says that they do not have any equity in the property at all so he should not be directed to make any payment to them. He does, however, consent to a condition on the order he seeks that he be responsible for repaying the balance owing to Dorchester, and the balance owing to the Legal Services Agency. He…

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 Keery v Thomas

Details

AGLC: Keery v Thomas [2015] NZHC 113
Case: [2015] NZHC 113
Decision Date: 10 February 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Colin Keery (the plaintiff) brought a claim against Lysandra Thomas and Mark Thomas (the defendants) seeking to purchase their shares in a property in Christchurch. The property was purchased in 2006 with Mr Keery providing a loan to the defendants which was to be repaid on demand. The property was damaged in the 2010 and 2011 Christchurch earthquakes and repairs were completed with the assistance of a payment from the Earthquake Commission. Mr Keery applied for summary judgment in relation to his claim.

The court had to decide whether there were any circumstances which would prevent Mr Keery from obtaining the orders he sought. In particular, the court had to consider whether the defendants had any equity in the property and if requiring them to sell their shares would cause hardship to them. The court also had to consider whether it had jurisdiction to order the defendants to sell their shares to Mr Keery.

The court found that the valuation of the property provided by Mr Keery was a fair representation of its likely market value. The court accepted that neither defendant had any equity in the property and that requiring them to sell their shares would not cause hardship to them. The court also found that it had jurisdiction to order the defendants to sell their shares to Mr Keery. The court ordered that Mr Keery purchase the defendants' shares in the property without paying any consideration to them, on the condition that he paid the debts owing to the first mortgagee, Dorchester Finance Limited and the Legal Services Agency.

The court ordered that Mr Keery purchase the defendants' shares in the property without paying any consideration to them. The court also ordered that the defendants provide Mr Keery with authority to disclose the sums owed to Dorchester Finance Limited and the Legal Services Agency, that Mr Keery pay those sums, and that the defendants take steps to transfer the property to Mr Keery. The court ordered that Mr Keery pay all legal fees and disbursements in relation to the proceedings except for the fees of the defendants' solicitors in relation to the transfer of the property. The court ordered that the defendants pay Mr Keery's costs on a costs on the application basis plus disbursements fixed by the Registrar, with the liability of the second defendant limited to costs up to and including service of the proceeding and this application for summary judgment on him, together with disbursements thereon.

Orders