Nicholson v Dunick - [2017] NZHC 2126

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-000066 [2017] NZHC 2126

UNDER s 339 of the Property Law Act 2007

BETWEEN

LEIGH IRVING NICHOLSON Plaintiff

AND

MARLENE MARIE DUNICK Defendant

Hearing: 2 June 2017

Appearances:

S Barker and O Gascoigne for the Plaintiff
R O Parmenter for the Defendant

Judgment:

1 September 2017

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 1 September 2017 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors / Counsel: Buddle Findlay, Auckland
Daniel Overton & Goulding, Auckland

R Parmenter, Auckland

NICHOLSON v DUNICK [2017] NZHC 2126 [1 September 2017]

The Issue

[1] Leigh Nicholson and Marlene Dunick are co-owners, in equal shares, of the fee simple at 10 Rogers Avenue. On the land there is a single-storey building that has been has been divided into two properties. The land is situated in a quiet cul-de-sac, one block back from the beachfront at Eastern Beach in Auckland.

[2] Ms Nicholson and Ms Dunick are parties to registered cross-leases: the former leases 10A; the latter, 10B. At issue is Ms Nicholson’s application for an order partitioning 10 Rogers Avenue into two fee simple titles. She seeks summary judgment on the application and says there is no tenable defence to the application. Ms Dunick disagrees. She opposes summary judgment. Ms Nicholson has the onus.

History of the dispute

[3] The original house at 10 Rogers Avenue was built in 1965. In the early

1980s, it was divided into two flats of equal size, sharing a common wall and a continuous roof. The original 999 year cross-lease was entered into at this time.

[4] The original lease still applies to 10B. A new lease applying to 10A was entered into between the parties in 2012 after Ms Nicholson undertook renovations to her flat.

[5] There are no material differences between the cross-leases relevant to this application. They are standard-form cross-leases. Both parties enjoy an undivided half share of the fee simple of the property. Both parties also have a
999 year lease over part of the building erected on the property (10A or 10B respectively), and exclusive use of an area adjacent to that part of the building. There are no common use areas.

[6] Much of the parties’ dispute arises out of the application of a contractual term identical in both cross-leases that covers the issue of structural alterations. Lessees must obtain the prior consent of the lessors to any structural alterations to the

building, which may not be unreasonably withheld. The cross-leases also provide that any dispute relating to this term (or the cross-lease arrangement generally) must be referred to arbitration.

[7] Ms Dunick moved into 10 Rogers Avenue first. She purchased 10B in January 2006, and lived there for seven years. At this time, she moved out of 10B, apparently due to the stress of her dispute with Ms Nicholson. 10B is therefore currently tenanted, but Ms Dunick hopes to return.

[8]…

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 [2017] NZHC 2126
Case: [2017] NZHC 2126
Decision Date: 1 September 2017

CaseChat Overview and Summary

Leigh Nicholson and Marlene Dunick are co-owners of the fee simple at 10 Rogers Avenue. Nicholson is seeking summary judgment on an application for an order partitioning 10 Rogers Avenue into two fee simple titles. Dunick opposes summary judgment. The court considered the application under the discretionary provisions of the Property Law Act 2007, as well as the principles guiding summary judgment procedures. The court found that while there are some factors in favour of the application, there are also serious unanswered questions as to the use of the term ‘deadlock’. The court was not willing to characterise the parties’ relationship as in a state of deadlock sufficient to justify summary judgment. The application for summary judgment was declined and costs reserved. The proceeding is to be allocated a case management conference if the plaintiff wishes to proceed with her claim.

Orders