MacKenzie v Smythe - [2012] NZHC 1113

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2516 [2012] NZHC 1113

UNDER Sections 339 to 343 of the Property Law
Act 2007

IN THE MATTER OF an application for a Partition Order

BETWEEN GREGORY JOHN MACKENZIE, COLETTE MACKENZIE AND PETER DYLAN LONG
Plaintiffs

ANDFIONA CHRISTINE SMYTHE Defendant

Hearing: 17 April 2012
(Heard at Wellington)

Counsel: FB Collins and AC Sinclair for Plaintiffs
CD Batt for Defendant

Judgment: 24 May 2012

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment of Associate Judge Gendall was delivered by the Registrar on 24 May
2012 at 3.30 pm under r 11.5 of the High Court Rules.

Solicitors: Gibson Sheat, Solicitors, Private Bag 31 905, Lower Hutt
Tripe Matthews & Feist, Solicitors, PO Box 5003, Wellington 6145

GJ MACKENZIE, C MACKENZIE AND PD LONG V FC SMYTHE HC WN CIV-2011-485-2516 [24 May
2012]

Introduction

[1] This case concerns an unenviable situation where cross-lease neighbours of a residential property in Nottingham Street, Karori, Wellington have fallen out in a major way. Over a period of time, a situation of deepening acrimony has steadily developed between those parties who are the neighbours in question here, the plaintiffs and the defendant. The plaintiffs own and live at No. 70 Nottingham Street and the defendant owns and currently leases out No. 68 Nottingham Street. These two neighbouring properties share a two-house residential cross-lease development concluded over 25 years ago in 1986.

[2] The present application before the Court is one by the plaintiffs seeking by way of summary judgment an order for partition of the property in question under s
339(1) Property Law Act 2007 on the basis that it is owned by the plaintiffs and the defendant as co-owners.

[3] In essence here, on the one hand the plaintiffs seek an order partitioning the cross-lease titles to the property they share with the defendant in order that they have their own fee simple titles to their individual dwelling and surrounds to deal with and (if they choose) to develop as they wish.

[4] On the other hand, the defendant opposes partition at this stage and maintains (now) that she wishes to retain her individual cross-lease title and to enjoy the protections afforded to her in the registered cross-lease over the plaintiffs’ neighbouring property.

[5] At the outset it is useful to note that this case highlights the shortcomings of cross-leases as a method of giving title to adjoining houses or flats, shortcomings which are now widely recognised. As to this, the comments made as long ago as
1994 by Mr D McMorland are worth repeating here:

The great disservice which local authorities have done to the general public for a large number of years by refusing to allow fee simple subdivisions ... and forcing the use of the cross-lease mechanism is only now beginning to surface in litigation. However, the flow has begun, the problems are constantly arising, and they will continue to do so for a long time into the future.

[6] Indeed, in 1999…

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 MacKenzie v Smythe

Details

AGLC: MacKenzie v Smythe [2012] NZHC 1113
Case: [2012] NZHC 1113
Decision Date: 24 May 2012

CaseChat Overview and Summary

In MacKenzie v Smythe, the plaintiffs sought an order for partition of a cross-lease property under s 339(1) of the Property Law Act 2007. The plaintiffs and the defendant owned adjoining residential properties under a cross-lease arrangement, which had led to significant friction and antagonism between them. The plaintiffs sought partition to obtain fee simple titles to their properties, while the defendant opposed partition and wished to retain the cross-lease arrangement. The court considered whether summary judgment was appropriate and whether there was any real question to be tried. The court found that the defendant had no real defence to the partition application. The plaintiffs had a right to partition which had been accepted by the defendant until she withdrew her consent. The court granted the summary judgment application for a bare order of partition but did not determine the form of the partition or related issues like compensation, valuation and cost-sharing. The parties were directed to file memoranda suggesting how those matters should proceed. Costs were reserved pending final determination of the proceeding.

Orders