Pawson v Haugh

[2023] NZHC 1262

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-269

[2023] NZHC 1262

BETWEEN

REBECCA JANE PAWSON

Applicant

AND

KEVIN TEREHITA HAUGH

Respondent

Hearing:	On the papers
Appearances:	T S Burtenshaw for Applicant
Judgment:	26 May 2023

JUDGMENT OF MANDER J

[1]    The applicant, Ms Rebecca Pawson, seeks leave to commence her proceeding for orders under ss 339–343 of the Property Law Act 2007 by way of originating application. The application is made without notice to the respondent, her ex-partner, Mr Kevin Haugh, in accordance with r 19.5 of the High Court Rules.

[2]    The parties entered into a relationship in April 2020 and began living together in April 2021. They separated on 3 September 2022. The relationship is described as being one of short duration for relationship property purposes, and it is submitted is not therefore captured by the Property (Relationships) Act 1976. In the course of that relationship they purchased a property at 737 Selwyn Road, Rolleston, and a 1986 John Deere tractor. Ms Pawson says they each contributed half to the acquisition of these assets by taking out a joint mortgage and paid half the balance of the purchase price.

[3]    Unfortunately, the termination of the relationship was acrimonious and, despite the parties apparently having contributed equally towards the purchase of the property

PAWSON v HAUGH [2023] NZHC 1262 [26 May 2023]

that is sought to be the subject of the substantive application, they have been unable to progress a settlement. Mr Haugh is said not to be engaging with Ms Pawson to progress the sale of the relationship property or its division.

[4]    The application to be made under the Property Law Act seeks an order for  Ms Pawson to purchase Mr Haugh’s share in the property and other related orders, including, in the alternative, an order for its sale and the division of the proceeds. An application for such orders is not one that must be made by originating application under r 19.2. However, the Court has a discretion under r 19.5 to permit other proceedings to be commenced by originating application where it is in the interests of justice to do so. It is submitted on Ms Pawson’s behalf that her application under the Property Law Act is appropriately commenced by that means, the Court having previously permitted these type of applications to be commenced by way of originating application.1

[5]    Having regard to the information set out in Ms Pawson’s affidavit and counsel’s memorandum in support, I am satisfied the interests of justice favour the proceeding being commenced by originating application and, in particular, that this is the best means to secure the just, speedy, and inexpensive determination of the matter. The proposed application appears relatively straightforward and is limited to the division of the parties’ jointly owned property, comprising land and buildings situated on semi-rural land and a tractor. I am advised the parties have been careful to contribute equally to the purchase price, outgoings and renovation of the property, and that, apart from these two assets, have kept their remaining property separate. It appears the only reason the division of this property has not been settled is Mr Haugh’s unwillingness to progress its division, rather than any contest as to the parties’ entitlements, although that no doubt remains to be seen.

[6]    It is not apparent  that  particularised  pleadings  are  necessary  to  inform  Mr Haugh of the details of Ms Pawson’s application or to further define the issues, nor does it appear likely that discovery, or other interlocutory applications or expert evidence will be required. Valuation evidence has already been obtained in respect of

1      Chiswell v Cunynghame [2020] NZHC 1651, (2020) 21 NZCPR 396; Gallagher v Grant [2021] NZHC 1907; and Austin v Anderson [2020] NZHC 2170.

the land. Mr Haugh is the only other party. It is submitted that any factual disputes that may be raised can be resolved by affidavit evidence, and if cross-examination does become necessary it is likely to be limited given the relatively confined nature of any potential factual disputes. To illustrate that point, Ms Pawson referenced how any dispute arising in relation to how much the parties have respectively paid into their joint account towards the property should be able to be readily determined from banking records.

[7]    In the circumstances, therefore, I do not consider the exchange of pleadings is necessary to fully inform the parties, and that the application is reasonably straightforward. It is not apparent there are the type of complicating factors that have arisen in other cases relating to similar applications that have either involved collateral agreements and ancillary disputes,2 or which raise difficult issues such as the status of inherited property.3 Nor does there appear to be any real possibility of cross-claims that may result in the need for interlocutory steps such as discovery.4

Result

[8]    Being satisfied the interests of justice favour the proceeding being commenced by originating application, leave is granted. There will be an order to that effect in the terms sought.

Costs

[9]Costs are reserved.

Solicitors:
Argyle Welsh Finnigan Limited, Ashburton

2      Lung v Liu [2021] NZHC 1810.

3      Casbolt v Harman [2020] NZHC 1354.

4      Bool v Hammond [2021] NZHC 2749.