Nicholson v Dunick
[2018] NZHC 1076
•18 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-66
[2018] NZHC 1076
BETWEEN LEIGH IRVING NICHOLSON
Plaintiff
AND
MARLENE MARIE DUNICK
Defendant
Hearing: 14 May 2018 Appearances:
The plaintiff in person
R O Parmenter for the Defendant
Judgment:
18 May 2018
JUDGMENT OF POWELL J
This judgment was delivered by me on 18 May 2018 at 3.30 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Daniel Overton & Goulding, Auckland
Counsel:
R O Parmenter, Auckland
Copy:
Ms G Schumacher, Auckland
NICHOLSON v DUNICK [2018] NZHC 1076 [18 May 2018]
[1] The plaintiff, Leigh Nicholson, has applied for an order under s 339(1)(b) of the Property Law Act 2007 which provides:
A court may make, in respect of property owned by co-owners, an order … for the division of the property in kind among the co-owners[.]
[2] In this case Ms Nicholson seeks partition of 10 Rogers Avenue, Eastern Beach into two fee simple titles. The fee simple title is owned by Ms Nicholson and the defendant, Marlene Dunick, in equal shares as tenants in common. The property is currently subject to registered cross-leases in favour of Ms Nicolson and Ms Dunick. As such:
(a)Ms Nicholson is the registered proprietor of an undivided one-half share in Lot 9 Deposited Plan 49130, and lease 9014952.3 of Area 3 on Deposited Plan 447252, described in Identifier 564281, which relates to 10A Rogers Avenue (“10A Rogers Avenue”); and
(b)Ms Dunick is the registered proprietor of an undivided one-half share in Lot 9 Deposited Plan 49130, and lease B.536768.1 of Flat 1 Deposited Plan 96464 described in Identifier NA52C/28, which relates to 10B Rogers Avenue (“10B Rogers Avenue”).
[3] Ms Nicholson seeks to partition 10 Rogers Avenue along the current boundary between the exclusive use areas provided for in the respective cross-leases for 10A and 10B Rogers Avenue. Underpinning Ms Nicholson’s application was a long history of discord between Ms Nicholson and Ms Dunick, which since Ms Nicholson purchased 10A Rogers Avenue in 2009 had manifested in two arbitrations and five arbitral awards, injunction proceedings in the High Court and restraining orders, the combined effect of which had restricted Ms Nicholson’s ability to develop 10A Rogers Avenue as she wished, although some development had occurred, and Ms Dunick had redeveloped 10B Rogers Avenue.
[4] The Court’s power to partition and make any necessary ancillary orders can only be exercised once the Court has had regard to a number of relevant considerations
set out in s 342 of the Act.1 Likewise, the Court’s powers are subject to s 340(1) of the Act which provides that “[no] order made under s 339(1)(b) (and no related order under s 339(4)) may subdivide land contrary to s 11 or Part 10 of the Resource Management Act 1991”.
Ms Nicholson’s Application
[5] Ms Nicholson’s application for partition originally proceeded by way of summary judgment. At that time the application was opposed by Ms Dunick and the application for summary judgment was refused, Associate Judge Sargisson being unable to conclude on the papers that the application was “sensible, simple and singularly beneficial” as submitted by Ms Nicholson.2 Instead, Associate Judge Sargisson considered a more in-depth assessment of the s 342 factors was warranted, including in particular “hardship” in terms of s 342(d) and whether the relationship between Ms Nicholson and Ms Dunick had reached the point of “intractable stalemate” that would justify the partition.
[6] The application accordingly proceeded towards a substantive hearing. By the time it was heard before me the live issues before the Court had narrowed considerably. Specifically, and most importantly, Ms Dunick no longer opposed the partition sought.
[7] As a result the primary matter at issue before me was whether the partition should be subject to any ancillary orders in terms of s 343 of the Act. For her part, Ms Nicholson initially sought wide-ranging compensation from Ms Dunick for her actions since Ms Nicholson purchased 10A Rogers Ave, as well as wanting Ms Dunick to pay the costs of the partition. At the hearing, I pointed out to Ms Nicholson that while s 343(a) of the Act provides for payment of compensation, this was clearly in relation to the partition in the event that partition would result in some substantive inequality of outcome, rather than a provision enabling broad compensation arising out of the wider relationship between Ms Nicholson and Ms Dunick. As a result, by the end of the hearing Ms Nicholson did not pursue her claim for compensation, and
1 Property Law Act 2007, ss 339(4) and 343.
2 Nicholson v Dunick [2017] NZHC 2126.
sought only an equal contribution from Ms Dunick in respect of the partition itself, together with costs on the proceeding (including the summary judgment application), noting that the costs sought were minimised to an extent given Ms Nicholson was self- represented at the hearing before me.
[8] In contrast Ms Dunick sought what her counsel Mr Parmenter termed a “building height restriction” over Ms Nicholson’s property on the basis that Ms Dunick had an existing property right to restrict Ms Nicholson to a single storey as a result of the first arbitration between the parties, and it was appropriate for an ancillary order to that effect. The ancillary order sought by Ms Dunick would have the effect of preventing Ms Nicholson from adding a further storey to her property in the future. Ms Dunick also considered that as she was not seeking partition, she should not have to bear the costs of the partition, and also requested that costs be reserved on the present proceedings.
Discussion and Analysis
[9] Having heard submissions from Ms Nicholson and Mr Parmenter and having read the affidavit evidence, particularly that from Ms Nicholson and Ms Dunick, I am satisfied having had regard to the matters in s 342 an order for partition is appropriate given the previous history between Ms Nicholson and Ms Dunick, and the ongoing issues that have resulted to this point. Given that the application is no longer opposed, it is not necessary to go into any detail, but I note specifically that the matters argued before Associate Judge Sargisson were no longer live.
[10] I am also satisfied that the requirements of s 340(1) of the Act can be met. This issue was addressed by the evidence of James Hook, a planning consultant called by Ms Nicholson. Mr Hook considered the proposed partition along the current cross-lease boundaries against the provisions of the operative Auckland Unitary Plan and concluded that there is:
No technical reason that would prevent the freehold subdivision consent from being granted.
[11] Taken together, I am therefore satisfied that the order for partition should be granted, subject to the necessary subdivision consent being obtained as identified by Mr Hook.
[12] With regard to the building height restriction sought by Ms Dunick, it is clear from Mr Parmenter’s submissions on behalf of Ms Dunick that the justification for such an ancillary order relied on the presence of a “existing contractual right” arising out of findings made by arbitrator David Carden in the first arbitration between Ms Nicholson and Ms Dunick. Mr Parmenter’s submission was to the effect that in his first interim award, Mr Carden had made a finding that Ms Nicholson was not entitled to build “up”, that is add a storey to her existing house, under any circumstances. This finding, according to Mr Parmenter, created an issue estoppel with regard to any future proposal by Ms Nicholson to add a storey.
[13] As I discussed with Mr Parmenter at the hearing, such a submission does not stand scrutiny. Mr Carden made it very clear that his decision was based on the then current proposal by Ms Nicholson, and specifically left open the possibility that a revised proposal at a later date may be appropriate.3 Furthermore, as became apparent at the hearing, since Mr Carden made his decision many of the underlying reasons for it appear to have changed as a result of the development undertaken in respect of Ms Dunick’s property and, in particular, the alterations to her backyard. Rather than being restricted as a result of Mr Carden’s award, in the absence of a partition order any revised proposal by either Ms Nicholson or Ms Dunick would have to be put to the other and, in the absence of consent to what was proposed, would stand to be considered in the course of a further arbitration. In such circumstances I do not consider that Ms Dunick has an “existing contractual right” to restrict Ms Nicholson to a single storey house, nor does any question of issue estoppel arise. As a result, I conclude there is absolutely no basis for a unilateral building height restriction in respect of Ms Nicholson’s property following partition.
[14] For completeness, I note at the conclusion of the hearing Mr Parmenter indicated that Ms Dunick would be happy with a mutual building height restriction
3 Interim Award dated 5 October 2010 at paragraphs 125-127 and 175.
over the two properties following the partition. With respect, and as Ms Nicholson pointed out, there is no evidence before the Court to support such an approach and I cannot see any justification to make such a condition. Clearly any future development on either property will have to be in accordance with the relevant provisions of the Resource Management Act 1991 and the Auckland Unitary Plan, and it is not appropriate for this Court to limit such development in the absence of expert evidence as to why such development should not occur.
[15] Finally, while Ms Dunick has stated clearly that she did not want the partition, given the position that the parties have now got to, that the partition can proceed, there are clearly advantages pertaining to both Ms Nicholson and Ms Dunick as a result of both properties becoming freehold. In the circumstances I therefore consider it appropriate that Ms Nicholson and Ms Dunick contribute equally to effecting the partition of their respective properties from this point onwards.
Decision
[16]For the reasons set out above I make the following orders:
(a)An order pursuant to s 339(1) of the Property Law Act 2007 for the division of 10 Rogers Avenue, Eastern Beach along the current boundary between the exclusive use areas for 10A Rogers Avenue and 10B Rogers Avenue respectively. This order is subject to the following conditions:
(i)the partition is to be effected in a manner consistent with s 11 and Part 10 of the Resource Management Act 1991;
(ii)partition wall and roofing easements in the terms set out in the Planning Feasibility Report carried out by Envivo dated 10 October 2016.
(b)Costs of the implementation of the partition from the date of this judgment are to be borne equally by the parties.
(c)Within 14 days of this judgment the parties are to reach agreement on the steps needed to implement the partition order. In the event that agreement cannot be reached, leave is reserved for the parties to seek further directions from me.
(d)Leave is generally reserved for the parties to seek further directions from me should any issue arise with regard to the implementation of the partition order.
(e)Costs on these proceedings are reserved. The parties will have 21 days to file any further submissions on costs of not more than three pages each, following which I will determine the issue on the papers.
Powell J
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