Matene v Estate of Matene
[2025] NZHC 3011
•10 October 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1645
[2025] NZHC 3011
UNDER the Property Law Act 2007 IN THE MATTER OF
Application for Order for Sale under s 339 of the Property Law Act 2007
BETWEEN
DANIEL HIKOI MATENE
Plaintiff
AND
THE ESTATE OF JOE HAU MATENE
First Defendant
IZAK HAU MATENE
Second Defendant
Hearing: 20 August 2025 Appearances:
D Grimes for Plaintiff
Judgment:
10 October 2025
JUDGMENT OF MACGILLIVRAY J
This judgment was delivered by me on 10 October 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar
Solicitors:
Thomson Wilson, Whangarei
MATENE v THE ESTATE OF MATENE [2025] NZHC 3011 [10 October 2025]
Introduction
[1] The plaintiff, Daniel Matene, applies under s 339 of the Property Law Act 2007 for an order for the sale of the property situated at 15 Kopi Place, Massey, Auckland (the property).
[2] The Attorney-General was served with this proceeding under s 22 of the Administration Act 1969 as there is no administrator of the first defendant’s estate. The Attorney-General abides the decision of the Court but reserves the right to appear if any party seeks relief or enforcement against the Crown.
[3] ANZ Bank, as the mortgagee of the property, also abides the decision of the Court.
[4] The second defendant and other parties directed to be served have taken no steps in this matter.
[5]The hearing of the claim proceeded by way of formal proof.
Background
[6] As most of the people involved in this proceeding share the same last name, I respectfully refer to the parties by their first names in this judgment.
[7] The plaintiff Daniel Matene is the son of Isaac Matene, who died on 19 August 2014. Isaac had suffered a head injury in 1994 leaving him with impaired mental capacity. Isaac’s brother Joe Matene was one of his property managers.
[8] On 21 May 2014, Isaac, Joe, and Joe’s son Izak Matene, the second defendant, jointly purchased the property as tenants in common in the following shares:
(a)A one-quarter share for Isaac.
(b)A seventh-tenths share for Joe.
(c)A one-twentieth share for Izak.
[9] The agreement for sale and purchase was signed for Isaac by his court appointed property managers.
[10] The purchase of the property was financed in part by a loan to Joe, Isaac and Izak as borrowers from ANZ Bank. The loan agreement was signed for Isaac by his court appointed property managers.
[11] The loan was for $296,000 of the total purchase price of $370,000. The plaintiff believes that Isaac paid $25,000 of the purchase price, Joe paid the remainder, and Izak did not contribute to the purchase price.
[12] Isaac died intestate on 19 August 2014. At the time of his death, his widow, Miriama Matene, was unaware of Isaac’s part-ownership of the property. After she became aware of Isaac’s interest, Miriama obtained letters of administration appointing her as trustee of Isaac’s estate and Isaac’s share in the property was transmitted into her name as trustee.
[13] On 5 December 2023, Daniel was appointed as a new trustee of his father’s estate in place of his mother Miriama and Isaac’s interest in the property is now held in his name as trustee.
[14] Joe died on or around 12 April 2022. It is understood that he also died intestate. To the best of the plaintiff’s knowledge, no executor or administrator has been appointed over Joe’s estate.
[15] In addition to his son, Isak, Joe had two daughters, Hannah Espie Matene and Jayde Wolsey. Jayde resides in Australia and Hannah in Auckland.
[16] Since Joe’s death, Izak and his family have resided at the property. It appears that Izak has been paying the mortgage on the property which ANZ has confirmed is up to date. However, no occupation rent has been paid to the co-owners of the property.
[17] Miriama as trustee instructed solicitors to engage with Isak and his sisters in an effort to reach an agreement as to what is to be done with the property but without success. Daniel’s evidence is that Izak has been threatening towards him and other family members because of this application and it appears there is no prospect of the issue of joint ownership of the property being resolved by agreement.
[18] When it became clear to her that litigation would be necessary to resolve the impasse, Miriama asked Daniel to take over as trustee to manage the process.
Formal proof
[19] The formal proof procedure under r 15.9 of the High Court Rules 2016 requires the plaintiff before or at the formal proof hearing to file affidavit evidence establishing to a Judge’s satisfaction, each cause of action relied on and, if damages are sought, providing sufficient information to enable the Judge to calculate and fix damages. The Court must be satisfied as to the plaintiff’s evidence just as if the proceeding gone to trial.1 The Court must be cautious given the fact that the plaintiff’s evidence is untested.2
Sale orders under s 339 Property Law Act 2007
[20]Section 339 of the Property Law Act provides:
339 Court may order division of property
(1)A court may make, in respect of property owned by co-owners, an order—
(a) for the sale of the property and the division of the proceeds among the co-owners; or
(b) for the division of the property in kind among the co-owners; or
(c) requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.
(2)An order under subsection (1) (and any related order under subsection (4)) may be made—
1 Wirepa v Wirepa [2024] NZHC 587 at [4] citing Ferreira v Stockinger [2015] NZHC 2916 at [35].
2 At [4] citing Tech Voice Data Ltd (in liq) v Ovenden [2015] NZHC 2766 at [2]; Kaikoura Freight Ltd (in liq) v Collins [2017] NZHC 1490 at [6]; and Zeng v Cai [2018] NZHC 2548 at [56].
(a) despite anything to the contrary in the Land Transfer Act 2017; but
(b) only if it does not contravene section 340(1); and
(c) only on an application made and served in the manner required by or under section 341; and
(d) only after having regard to the matters specified in section 342.
[21]Section 342 provides:
342 Relevant considerations
A 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.
[22] The significance and weight of each factor set out in cl 342 will depend on the circumstances of the case.3
Should a sale order be made?
Extent of the parties’ shares
[23] The party seeking the sale order has a substantial 25 per cent interest in the property.
3 Bayly v Hicks [2011] NZHC 920, (2011) 13 NZCPR 568.
[24] Isak, who owns a one-twentieth share of the property, evidently does not want the property to be sold and nor, it appears, does he have any interest in his father’s estate being administered. As matters stand, he is the only owner of the property obtaining any benefit from the property and I infer that he is happy with the status quo.
[25] The position of the “owner” of the seven-tenths majority share cannot be ascertained as no-one has applied for administration of Joe’s estate.
[26] On 31 January 2023, Hannah informed the plaintiff’s solicitor that she intended to apply for administration with Jayde’s support, but she did not respond to follow up emails.
[27] On 11 August 2025, Jayde sent Daniel an email saying “yes I agree to the sale of Kopi [P]lace, I am not in contact with Hannah[,] I don’t have a number for her or address”. Jayde sent a text message to Daniel on the same day telling him that she does not have funds to get a lawyer and that Hannah was meant to do so with her support. Jayde suggested a reason which might explain why Hannah wanted nothing further to do with the issue.
[28] Jayde and Hannah stand to benefit from Joe’s estate and the sale of the property is likely to lead to Joe’s estate being administered. Following a sale, Isak and his sisters should all be motivated to cooperate in seeking the administration of the estate so that Joe’s estate can deal with its share of the proceeds of sale. It does not appear to be in Jayde’s or Hannah’s interest for the current situation to continue.
[29] I am satisfied that the only person who would positively oppose the sale of the property (noting he has taken no steps to do so) is Isak as the owner of a small minority share.
Nature and location of the property
[30] The property is a residential property occupied by Isak and his family without payment of rent. The other co-owners are unable to use or obtain and benefit from the property as a co-owned property.
[31] Given the evident antipathy between Isak and the plaintiff’s side of the family, Daniel cannot access the property to ascertain its condition. When he drove past the property in December 2023, it appeared to him the property was not being well maintained and appeared to be in a state of disrepair. He is concerned that there have been unconsented extensions made to the property. Based on a more recent photograph taken by a process server, he believes that the poor state of the property is unchanged.
[32] It is an unsatisfactory state of affairs for a co-owner of a property to be excluded from access to their property and to be unable to take steps to ensure that the property is being maintained, and its value protected.
Hardship
[33] Isak and his family live at the property and have evidently paid the mortgage and outgoings on the property since Joe’s passing. I infer that there may be some level of hardship to Isak from having to move out of the property. There will at least be inconvenience. However, the potential hardship to Isak and his family does not weigh heavily against a sale order.
[34] Under the orders sought by the plaintiff, Isak will be entitled to credit for mortgage payments and outgoings he has paid, and he will receive his one-twentieth entitlement to the sale proceeds. He is also a beneficiary of Joe’s estate to which seven-tenths of the sale proceeds will be due.
[35] Most importantly, the current situation is highly unsatisfactory. This will not change without intervention by the Court. There is existing hardship to the beneficiaries of Isaac’s estate and the other beneficiaries of Joe’s estate as they cannot obtain any benefit from the property as matters stand.
Summary
[36] I am persuaded that an order for the sale of the property should be made. Isak’s failure to engage with the plaintiff combined with the failure of Joe’s children to seek
administration of Joe’s estate, has frustrated the ability of the co-owners to deal with the property.
[37] Any hardship to Isak from a sale is outweighed by the prejudice to the beneficiaries of Isaac’s estate as well as to the other beneficiaries of Joe’s estate arising from the status quo.
Form of orders and costs
[38] Daniel accepts that Isak and Joe’s estate should be given credit for any amount they have paid towards the repayment of the mortgage on the property. He says this credit should be offset against a notional occupation rent payable by Isak and Joe for their occupation in the years following Isaac’s passing.
[39] At the time of the formal proof hearing, the plaintiff had been unable to obtain evidence from ANZ Bank as to the amount of mortgage repayments made since the purchase of the property. In addition, the plaintiff sought information from Auckland Council in relation to the payment of outgoings on the property.
[40] Subsequently, applications for non-party discovery were made against ANZ and Auckland Council which were resolved by consent. Discovery has recently been provided by ANZ and Auckland Council and some further supplementary discovery is to be provided by the bank.
[41] In the circumstances, I will make orders for the sale of the property and directions for the filing of additional evidence covering the claim for occupation rent and credits due for mortgage repayments and payment of outgoings. I will also make directions for further submissions in relation to the distribution of the net sale proceeds.
[42] The plaintiff seeks costs of this proceeding on a solicitor/client basis. I am satisfied that this is appropriate.4 Isak and his sisters have had every opportunity to
4 Following the approach Calian v Cassidy [2021] NZHC 3413 and Middlemiss v Middlemiss
[2023] NZHC 2051.
arrange for the administration of Joe’s estate and to engage with the plaintiff in relation to resolving the issue of co-ownership. The plaintiff has limited means and has had to meet filing fees and some legal costs upfront and has otherwise been reliant on his solicitors agreeing to a credit arrangement. Isaac’s estate, as the party trying to constructively resolve the issue of co-ownership, should not be left out of pocket.
[43] Daniel provided a statement showing total costs and disbursements to 13 August 2025 amounted to $31,533.87, but this did not include copies of the relevant invoices showing the steps to which each invoice relates. I make directions below for the provision of further evidence on costs both to bring the cost claim up to date and so that the court can be satisfied that the amounts claimed are reasonable.
Result
[44]I make the orders set out in [45]–[48] below.
Sale orders
[45]In relation to the sale of the property:
(a)The second defendant and any other occupier of the property must vacate the property by 25 November 2025.
(b)Once the property is vacant, the plaintiff is to engage a reputable real estate agent to market and sell the property.
(c)The property is to be sold by auction or private treaty or such other method of sale recommended by the real estate agent following a marketing campaign of no less than 4 weeks.
(d)The plaintiff is authorised to accept an offer for the sale of the property and is authorised to sign on behalf of all owners the documents required to sell the property, including the listing agreement and any agreement for sale and purchase of real estate in the standard ADLS form.
(e)The plaintiff’s solicitors Thomson Wilson are authorised to act on behalf of all owners in respect of the conveyancing of the property.
(f)Upon a sale and purchase agreement being entered into and becoming unconditional, the Registrar of the court will seal a further court order to vest ownership in the purchaser. The order will be held by Thomson Wilson pending registration in Landonline on the settlement date.
(g)The plaintiff has leave to apply to the court to vary these orders or to seek additional orders in relation to the sale of the property.
Sale proceeds
[46] The proceeds from the sale of the property shall be disbursed or held by Thomson Wilson as follows:
(a)In payment of the loan secured by the mortgage to enable the discharge of the mortgage.
(b)In payment of such commission, marketing costs and other sums legally payable to the real estate agency appointed to sell the property.
(c)In payment of all outgoings due on the property and other costs of sale, including the rates, water, such reasonable conveyancing legal costs and any other apportionments.
(d)In payment of the legal costs awarded to the plaintiff in this proceeding.
(e)The net proceeds of sale after the payments under (a)–(d) to be held on interest bearing deposit in Thomson Wilson’s trust account pending further order of the court.
Further evidence and submissions
[47] Within 30 working days after the provision of the supplementary non-party discovery ordered from ANZ, the plaintiff is to file:
(a)Affidavit evidence from the plaintiff providing:
(i)Details of mortgage repayments and payments of outgoings made by any of the co-owners since the purchase of the property.
(ii)Details to support the plaintiff’s claim for solicitor/client costs.
(b)Affidavit evidence (for example, from a letting agent) as to a reasonable hypothetical market rent for a property of this type in its location covering the period from 2014 to the present.
(c)Supplementary submissions addressing the proposed distribution of the net sale proceeds, including the plaintiff’s position on debit or credit adjustments for:
(i)Notional occupation rent chargeable to Joe and Isak for their occupation after Isaac’s passing.
(ii)Payments made by Joe or Isak towards the repayment of the mortgage and rates.
[48] Following the filing of further evidence and submissions under [47] I will issue a further judgment determining how the net proceeds of sale of the property are to be distributed between the co-owners.
MacGillivray J
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