Murphy v Murphy - [2013] NZHC 1151

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2010-463-797 [2013] NZHC 1151

BETWEEN CHEYNE DENNIS MURPHY Plaintiff

AND

ROBYN STEPHANIE MURPHY Defendant

Hearing: On the Papers

Counsel:

J Wynyard for Plaintiff
T Grimwood for Defendant

Judgment:

20 May 2013

JUDGMENT (NO. 2) OF TOOGOOD J

This judgment was delivered by me on 20 May 2013 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

MURPHY v MURPHY [2013] NZHC 1151 [20 May 2013]

[1] In my principal judgment in this proceeding, dated 15 February 2013,1 I

proposed making orders which would:

(a) result in the defendant, Mrs Murphy, becoming the sole registered proprietor of the property which was in dispute; and

(b)require Mrs Murphy to pay her son, Cheyne, $13,500 by way of compensation under s 343(a) of the Property Law Act 2007 (“the Act”).

[2] I invited the parties to confer as to the form of the orders to be made, including as to the timing of the compensation payment, and to file a joint memorandum for consent orders or, failing agreement, separate memoranda setting out their views.

[3] I also reserved the question of costs, expressing the tentative view that each party had succeeded in part and that costs should lie where they fell. I reserved leave to either party to apply for costs by way of memorandum.

[4] The parties are unable to agree how the proposals set out in the principal judgment should be implemented, and they disagree about costs.

[5] The principal disagreement between the parties is as to how the Court should give effect to its judgment which requires the property to be transferred solely into the name of Mrs Murphy.

[6] At the time of the hearing, the property which was the subject of the dispute was occupied by Cheyne Murphy’s step-daughter, who was paying what I considered to be reasonable rent, but she moved out shortly after the hearing and the property has remained empty since then. Mrs Murphy says that the Court should order the plaintiff to restore the property to a reasonable rentable condition as determined by a
professional property manager, the cost of inspection to be carried by the plaintiff.

1 Murphy v Murphy [2013] NZHC 217.

[7] I have heard no evidence on this aspect of the case. The evidence at the trial indicated that the property was left vacant from time to time over the period from the date of purchase to the hearing of the proceeding, and there was nothing in the evidence which would persuade me that Cheyne was under some duty to maintain the property at any time. I do not consider there is any basis on which I could properly consider a claim not addressed at the hearing which, in reality, goes to the making of further substantive orders under s 343(g) of the Act. I decline to do so.

[8] The transfer of the property into Mrs Murphy’s name solely, and the payment

of compensation to Cheyne,…

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 Murphy v Murphy

Details

AGLC: Murphy v Murphy [2013] NZHC 1151
Case: [2013] NZHC 1151
Decision Date: 20 May 2013

CaseChat Overview and Summary

The case of Murphy v Murphy involved a dispute between Cheyne Dennis Murphy and Robyn Stephanie Murphy over a property located at 1 Motoi Place, Ngongotaha, Rotorua. The dispute was adjudicated in the High Court of New Zealand, Rotorua Registry. The primary issue in this case was how to implement the previous court order that required the property to be transferred solely into the name of Mrs Murphy, the defendant, and to determine how the compensation payment to Cheyne, the plaintiff, should be handled. The court had previously ordered that Cheyne pay his mother $13,500, and that the property be transferred to her sole ownership.

The court declined to entertain Mrs Murphy's request for Cheyne to restore the property to a rentable condition, as it was not raised during the hearing and would require making further substantive orders. Instead, the court opted to treat the transfer and compensation as a straightforward conveyancing transaction. The court ordered that Cheyne remove any securities on the property by a specified date, that the parties discharge the mortgage on the property, and that Cheyne transfer his interest in the property to his mother in exchange for the compensation payment. Additionally, the court ordered that any keys or documents relating to the property be handed over to Mrs Murphy on the settlement date.

Regarding costs, the court noted that both parties had partial success in their claims, and initially, the parties had agreed there would be no costs order. However, the plaintiff, who had legal aid, later sought costs on a Category 2B basis. The defendant argued that the plaintiff's rejection of a pre-trial settlement offer, which was for a sum greater than the final award, warranted an award of costs against the plaintiff. The court reserved the issue of costs, giving the defendant until a certain date to apply for costs and the plaintiff until a later date to respond. The matter of costs would be decided on the papers unless the court ordered otherwise.

Orders