Middlemiss v Middlemiss - [2023] NZHC 2051

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2023-406-001

[2023] NZHC 2051

UNDER the Property Law Act 2007, ss 339 and 343

BETWEEN

STEPHEN JOHN FRANCIS MIDDLEMISS

Plaintiff

AND

RICHARD ARCHER ANTHONY MIDDLEMISS

Defendant

Hearing (via VMR): 3 August 2023

Counsel:

A McDonald and C Rutledge for Plaintiff

Judgment:

3 August 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1] In this proceeding the plaintiff seeks an order for the sale of the property at 88 Main Street, Blenheim (the property) and other related orders.

[2] Proceedings were filed in December 2022 and service on the defendant finally effected in April 2023. The defendant has not filed a statement of defence nor a notice of appearance.

[3] The plaintiff has consequently applied for judgment by way of formal proof against the defendant in terms of r 15.9 of the High Court Rules 2016 (the Rules).

MIDDLEMISS v MIDDLEMISS [2023] NZHC 2051 [3 August 2023]

The plaintiff’s substantive claim

Background

[4] The plaintiff, Stephen Middlemiss (Stephen), and the defendant, Richard Middlemiss (Richard), together with their brothers Paul Middlemiss (Paul) and Christopher Middlemiss (Chris), own the property as tenants in common in equal shares. They inherited the property from their mother, Joyce Middlemiss (Joyce), who died on 30 May 2002.

[5] The defendant has been in occupation of the property since Joyce died. The plaintiff says the defendant has not paid rent to the other co-owners, has refused or ignored suggestions that the property be sold, and has not maintained the property, with the result that the property is now in a state of disrepair.

Relief sought

[6] The plaintiff is facing financial hardship, and seeks orders under ss 339(1)(a) and 343 of the Property Law Act 2007 for the property to be sold and for his share of the proceeds to be distributed to him.

[7] Initially, he had also claimed in the alternative that the defendant and/or the co- owners purchase the plaintiff’s share of the property on terms including compensation from the defendant by way of occupation rent (plus interest) as well as compensation for any loss he had suffered as a result of the defendant’s failure to maintain the property. However these alternative claims are no longer being pursued.

Rule 15.9 formal proof application

[8] The plaintiff seeks formal proof judgment under r 15.9 of the Rules, which relevantly states:

15.9 Formal proof for other claims

(1)This rule applies if, or to the extent that, the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, and the plaintiff seeks judgment by default for other than a liquidated demand.

(2)The proceeding must be listed for formal proof and no notice is required to be given to the defendant.

(3) …

(4)The plaintiff must, before or at the formal proof hearing, file affidavit evidence establishing, to a Judge’s satisfaction, each cause of action relied on and, if damages are sought, providing…

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 Middlemiss v Middlemiss

Details

AGLC: Middlemiss v Middlemiss [2023] NZHC 2051
Case: [2023] NZHC 2051
Decision Date: 3 August 2023

CaseChat Overview and Summary

In Middlemiss v Middlemiss, the plaintiff, Stephen Middlemiss, sought a court order for the sale of a property located at 88 Main Street, Blenheim, which he jointly owned with his brothers, including the defendant, Richard Middlemiss. The plaintiff argued that the property had fallen into disrepair due to the defendant's failure to maintain it and that the defendant had not contributed to the costs of improvements or maintenance. The plaintiff also claimed that the defendant had not paid rent for occupying the property and had refused to consider selling it. The plaintiff, who was facing financial hardship, sought relief under sections 339(1)(a) and 343 of the Property Law Act 2007, requesting the court to authorise the sale of the property and the division of the proceeds among the co-owners.

The legal issues before the court were whether the plaintiff was eligible for a formal proof judgment under rule 15.9 of the High Court Rules 2016, given that the defendant had not filed a statement of defence, and whether the court should grant the relief sought under the Property Law Act 2007. The court had to consider the relevant factors outlined in section 342 of the Act, including the extent of the plaintiff's share in the property, the nature and location of the property, the number of other co-owners, the hardship caused to the plaintiff by the refusal of the order, and any other relevant matters.

The court found that the plaintiff was eligible for a formal proof judgment as the defendant had not filed a statement of defence within the required timeframe. The court also concluded that the plaintiff had a specified interest in the property and had standing to make an application for the sale order. After considering the relevant factors, the court determined that it was appropriate to grant the plaintiff's request for the sale of the property and the division of the proceeds. The court emphasised the plaintiff's financial hardship and the defendant's lack of engagement in resolving the matter, which had led to the necessity of court proceedings. The court also noted that the plaintiff should not bear the costs of the proceedings due to the defendant's failure to respond to the plaintiff's efforts.

In conclusion, the court granted the formal proof application and ordered the sale of the property and the division of the proceeds among the co-owners. The court detailed the terms of sale, including the defendant's requirement to vacate the property, the appointment of real estate agents, and the reimbursement of costs associated with the sale. The plaintiff was also to be reimbursed for the legal costs of the proceedings from the defendant's share of the sale proceeds.

Orders