Nicholson v Dunick - [2018] NZHC 1076

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…

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 Nicholson v Dunick

Details

AGLC: Nicholson v Dunick [2018] NZHC 1076
Case: [2018] NZHC 1076
Decision Date: 18 May 2018

CaseChat Overview and Summary

The case of Nicholson v Dunick involved a dispute between the plaintiff, Leigh Irving Nicholson, and the defendant, Marlene Marie Dunick, over the partition of property located at 10 Rogers Avenue, Eastern Beach. Both parties held equal shares in the fee simple title as tenants in common, and the property was subject to registered cross-leases. Nicholson sought an order for the division of the property in kind, under section 339(1)(b) of the Property Law Act 2007. The primary legal issue before the court was whether the partition should be subject to any ancillary orders in terms of section 343 of the Act.

The court found that the partition should proceed, subject to the necessary subdivision consent being obtained. The court rejected Dunick's claim for a building height restriction over Nicholson's property, as there was no evidence to support such an approach and it was not appropriate for the court to limit development in the absence of expert evidence. Instead, the court considered it appropriate that both parties contribute equally to effecting the partition of their respective properties.

The court made the following orders: (a) An order 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, subject to certain conditions; (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; (d) Leave is generally reserved for the parties to seek further directions from the court should any issue arise with regard to the implementation of the partition order; and (e) Costs on these proceedings are reserved.

Orders