Ovens v Ovens

[2022] NZHC 3521

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-132

[2022] NZHC 3521

BETWEEN

CHRISTOPHER JOHN WILLIAM OVENS

Applicant

AND

STUART CHARLES OVENS

Respondent

Hearing:	(Determined on the papers)
Appearances:	R L Powell for the applicant
Judgment:	19 December 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

OVENS v OVENS [2022] NZHC 3521 [19 December 2022]

[1]    Mrs  Isabella  May  Ovens  who  died  in  1995    owned  the  property  at    28 Patmos Avenue, Woodhaugh, Dunedin (the property).

[2]    Mrs Ovens transferred the property to her seven children in 1990, effectively by way of inheritance, and they are now the registered proprietors of the property as tenants in common in equal shares.

[3]    All but one of the seven owners want the property sold as previous plans to develop the property have not borne fruit. Only Stuart Charles Ovens (Stuart), the respondent, disagrees with the property being sold.

[4]    The applicant, Christopher Ovens (Christopher), wishes to use the originating application procedure to seek orders of sale of the property under the Property Law Act 2007 and  an  order  that  the  sale  proceeds be  divided  seven  equal  ways.  In a practical sense, he sues as a representative of his five siblings who consent to the sale of the property. Christopher seeks an order that they need not be served, leaving only the need to serve Stuart.

[5]    Christopher’s siblings, other than Stuart, as owners have signed consents (which have been filed with the Court) to the order for sale and the equal division of the proceeds of sale of the property.

[6]    Given those consents, I see no point in incurring unnecessary in serving owners of the property who want to see it sold and the sale proceeds divided equally.

[7]    Accordingly, there is an order dispensing with service of the proceeding on all co-owners of the property other than Stuart Charles Ovens.

[8]    As to the use of the originating application procedure, the only factor that potentially stands against the use of the originating application procedure here, is the prospect of a factual dispute concerning whether Stuart has a claim for maintenance of the property. Even if Stuart does have a claim, there is the potential for the estate to have a set-off in relation to his use of the property.

[9]    I do not see that possibility as standing in the way of the use of the originating application procedure as fundamentally this application is about achieving the sale and the distribution of the sale proceeds. Stuart’s claim is apparently for an adjustment of

$30,000. A claim at that level does not warrant the added expensive of requiring formal pleadings. The fact is, it is unlikely any claimed adjustment would prevent the order for sale and distribution as $30,000 could be retained in trust pending Stuart proving his claim.

[10]   Accordingly, I am satisfied it is appropriate that there be leave to use the originating application procedure and I direct accordingly.

Associate Judge Lester

Solicitors:
Robertson Toomey Law, Christchurch (for Applicant)