| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA418/2020 [2021] NZCA 693 |
| BETWEEN | HO SHING LO |
| AND | HO CHEONG LO |
| Hearing: | 29 July 2021 |
Court: | Goddard, Thomas and Wylie JJ |
Counsel: | M D Lloyd for Appellant |
Judgment: | 16 December 2021 at 3.00 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BOrder permitting the respondents to buy out the appellant’s share in the property on the terms set out in the Appendix to this judgment.
CLeave is reserved to the parties to file submissions in relation to the terms of the orders to be made to govern the scenario where a buy-out does not proceed, in accordance with the timetable directions set out at [106].
DCosts are to lie where they fall.
____________________________________________________________________
Table of contents
Para No
Overview
Background
Relevant legislation
High Court judgment
Concerns about procedure and evidence
Applicant’s share in the property
Nature and location of the property
Interests of other co-owners
Comparative hardship to parties
Contributions to the improvement and maintenance of the property
Overall assessment
Result
Appellant’s submissions
Respondents’ submissions
Discussion
Use of originating application procedure
Was the evidence inadequate?
The nature of the appeal
Ascertaining the parties’ ownership interests
Giving effect to Chi Na’s equitable interest in the Flat Bush property
Result
REASONS OF THE COURT
(Given by Goddard J)
Overview
The appellant (Ho Shing) and the first respondent (Ho Cheong) are twin brothers. They are the registered proprietors of a six-bedroom property in Flat Bush, Auckland.
Ho Shing no longer lives at the property. He considers it should be sold. Ho Cheong lives at the property with his mother (Chi Na), the second respondent; his grandmother, Yan Yi Wang (Yanyi); and younger brother, Ho Kwan Lo (Ho Kwan). Ho Cheong does not agree that the property should be sold: he wants it to be retained as a home for the family. So does Chi Na. Chi Na says she also has an interest in the property. She wishes to remain in it with all the other family members who currently live there.
Ho Shing applied for an order under s 339(1) of the Property Law Act 2007 (PLA) for sale of the property and division of the proceeds between him and Ho Cheong, or alternatively, an order requiring Ho Cheong to purchase his share in the property. That application was dismissed by Jagose J.[1]
[1]Lo v Lo [2020] NZHC 1614 [High Court judgment].
Ho Shing appeals to this Court. He says there is an impasse between himself on the one hand, and his brother and mother on the other hand, which can only be resolved by the Court making appropriate orders.
We have concluded that Ho Shing and Ho Cheong have equal shares in the property, subject to a constructive trust in favour of their mother, Chi Na. That constructive trust protects Chi Na’s reasonable expectation that this property, or some other suitable…
Continue reading Lo v Lo
Sign in free to access the full text
- AGLC
- Lo v Lo [2021] NZCA 693
- Case
- [2021] NZCA 693
- Decision Date
CaseChat Overview and Summary
The court, in deciding these issues, emphasised the broad discretion conferred by the legislation. It highlighted that the court must consider a non-exhaustive list of relevant considerations when deciding whether to order the sale of co-owned property. This included the respective shares of the co-owners, the nature and location of the property, the number of co-owners, the relative hardship of a sale to each party, and any contributions to improvements or maintenance. The court noted that it should stand back from the specific orders sought by the parties and determine the most just and practical resolution of the impasse. In exercising its discretion, the court could order the sale of the property and make ancillary orders concerning compensation, division of proceeds, and other matters deemed necessary or desirable.
Upon considering these factors, the court concluded that ordering the sale of the property was the most appropriate resolution, given the circumstances. The court detailed the considerations it took into account and justified its decision based on the specific facts of the case. The court also made several ancillary orders to ensure a fair outcome for all parties, including provisions for compensation, division of proceeds, and the bearing of expenses. Ultimately, the court ordered the sale of the property and outlined the terms of the ancillary orders to govern the sale and its aftermath.
The final orders included the mandatory sale of the jointly owned property, with specific directions on the division of proceeds, compensation to be paid to one party, and the allocation of expenses. The court also provided for the payment of a fair occupation rent and allowed certain terms for the purchase, such as the non-payment of a deposit and the setting-off or accounting for part of the purchase price. These orders were intended to ensure a fair and practical resolution of the impasse between the co-owners.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Section 342 sets out a non-exclusive list of relevant considerations that a court must take into account when considering whether to make an order under s 339(1):342 Relevant considerationsA court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:(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. Section 343 sets out the ancillary orders that may be made by a court when making an order under s 339(1):343 Further powers of courtA 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:(a)requires the payment of compensation by 1 or moreco-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). Sections 339 to 343 of the PLA confer a broad discretion on the court to make orders that resolve an impasse between co-owners.[2] The court may make an order sought by one or other party, or a different order that it considers more appropriate. As this Court said in Bayly v Hicks:[3]Under this new broad discretionary regime it is appropriate for a judge to stand back from the submissions and proposals of the parties, and consider what, on an overview, taking into account the relevant considerations, is the most just and practical way through the impasse before the court, even if the answer may not reflect the orders sought by the parties. By definition the cases that come before the court arise where parties are locked into an ownership position which they cannot resolve because of the positions they have taken, and where a way out may be by a path neither has to that point contemplated.[2]Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [25] and [32].[3]At [32].