Ngui v Ngui - [2020] NZHC 160

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-001970

[2020] NZHC 160

UNDER The Property Law Act 2007

BETWEEN

MERLISA SHIOW CHING NGUI

First Plaintiff

AND

MERLYNDA SHIOW MIN NGUI

Second Plaintiff

AND

MERLYNA SHIOW SZE NGUI

Third Plaintiff

AND

JOSEPH SHIOW SEN NGUI

Defendant

Hearing: 3 February, 7 February & 12 February 2020

Appearances:

A Gilchrist for the Plaintiffs J A Wickes for the Defendant

Judgment:

13 February 2020

Reissued:

20 February 2020

JUDGMENT OF VAN BOHEMEN J

Re-delivered on 20 February 2020 at 3pm as per minute of Justice van Bohemen of 20 February 2020

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Vlatkovich & McGowan, Auckland Southern Cross Chambers, Auckland Loo & Koo, Auckland

NGUI v NGUI [2020] NZHC 160 [13 February 2020]

[1] This proceeding concerns a dispute among four siblings over a property which had been the family home and which was left to them by their mother when she died in August 2015.

[2] The plaintiffs are three sisters, Merlisa, Merlyna and Merlynda Ngui. The defendant, Joseph Ngui, is their brother. The property in dispute is at 476 Herd Road, Hillsborough, Auckland and comprises 1,108 square metres of a land with a single residential dwelling. After some delay, the four children have been registered on the title of the property as owners as to a quarter share each. Joseph, his wife and two children, and his wife’s mother have been the only occupants of the property for most of the period since the mother died.

[3] The sisters seek orders under s 339(1)(a) and (3) of the Property Law Act 2007 (the Act) directing the valuation and sale of the property. Joseph opposes these orders on the grounds they are not appropriate in the circumstances. He says the Court should make an order under s 339(1)(c) of the Act allowing him time to buy the property at an appropriate price. He also says the Court should take into account an asserted agreement giving him the right to subdivide the property and to occupy one of the resulting lots. He also says the Court should order performance of that agreement or should make an order under s 49(1)(a) of the Administration Act 1969 in respect of his interests under that agreement.

Relevant background

[4] The three sisters, Merlisa, Merlyna and Merlynda, aged 49, 51 and 43 respectively, and their brother, Joseph, aged 46, are the only children of Theodore Soon Tieng and Regina Mee Hoon who, with their four children, emigrated to New Zealand from Malaysia in 1989. The father bought the property in December 1989 with the help of his sister, and the family lived there as they settled into life in New Zealand.

Title to the property

[5] The property was initially purchased in the name of the father and one of his sisters. However, the father became sole owner of the property in May 1992.

[6] In 1998, the father died, and the property passed…

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 Ngui v Ngui

Details

AGLC: Ngui v Ngui [2020] NZHC 160
Case: [2020] NZHC 160
Decision Date: 13 February 2020

CaseChat Overview and Summary

Ngui v Ngui is a property dispute between four siblings over their late mother’s property. The siblings, Merlisa, Merlynda, Merlyna, and Joseph, each hold a 25% share in the property. The sisters seek to sell the property, while Joseph opposes the sale and seeks an opportunity to purchase the sisters’ shares. The High Court of New Zealand was tasked with deciding whether Joseph has a right to subdivide the property, whether the court should order the sale of the property, and if so, under what conditions.

The court found that Joseph does not have a right to subdivide the property as there was no consideration to support any agreement between Joseph and his mother. The court also found that the balance of considerations under the Property Law Act 2007 favours the sale of the property, as the sisters own 75% of the property and would suffer significant hardship if the sale is not ordered. The court ordered that Joseph be given an opportunity to purchase the sisters’ shares within a defined period and at a market value reflecting the time of sale. The court also ordered that Joseph pay his sisters rent from May 2016 and that the sisters compensate Joseph for repairs and maintenance costs.

The court made orders for the sale of the property and for Joseph to have an opportunity to purchase the sisters’ shares within a defined period. If Joseph does not exercise this opportunity, the property is to be put on the market for sale. The court also ordered that Joseph pay his sisters for rent and that the sisters compensate Joseph for repairs and maintenance costs. The siblings are to share the costs of any division or sale of the property equally.

Orders