Pene v Pene - [2018] NZHC 3140

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-127

[2018] NZHC 3140

IN THE MATTER Of an application for sale of a property

UNDER

Section 339 of the Property Law Act 2007

BETWEEN

SYRINA EVE PENE

Plaintiff

AND

MARYANNE PENE

Defendant

Hearing: 22 November 2018

Appearances:

T Burtenshaw and E M Thomson-Learmonth for the Plaintiff

Judgment:

3 December 2018

Reissued:

4 December 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Monday 3 December 2018 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules.

This judgment was recalled and reissued by me on Tuesday 4 December 2018 pursuant to Rule 11.9 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Solicitors:
Norris Ward McKinnon, Hamilton.

PENE v PENE [2018] NZHC 3140 [3 December 2018]

Introduction

[1] The plaintiff, Ms Syrina Pene, seeks an order for sale of a property located at 11 Cadman Street, Waharoa, under s 339 of the Property Law Act 2007 (the Act). She also seeks supplementary orders under s 343 of the Act. Syrina owns the property as tenant in common in equal shares with her sister, the defendant, Ms Maryanne Pene. For convenience I will refer to the sisters respectively as Syrina and Maryanne.

[2] Syrina’s statement of claim was filed on 16 May 2018 and Maryanne was served shortly thereafter. Maryanne has not filed a statement of defence nor taken any other step in the proceeding. Syrina’s application therefore proceeds by way of formal proof.

Background

[3] The Cadman Street property was previously owned by the parties’ mother, the late Ms Karen Kaukau. On her death the property was transferred to Syrina and Maryanne in equal shares. This occurred in December 2017. Although there was no mortgage on the property there were a number of outstanding accounts in respect of it, including unpaid rates and various maintenance bills.

[4] Between 2 June 2016 and October 2016 Syrina and Maryanne rented the property to a third party at $250.00 per week, with the income applied to these accounts. In December 2016 Maryanne indicated a desire to move into the property herself. On 4 February 2017 the parties entered into a five-year fixed term residential tenancy in terms of which Maryanne agreed to pay $300 a week into the joint account of the parties. Maryanne continues to reside in the property. She is said to be living with up to nine other people and a dog, which Syrina says she never agreed to.

[5] For the first six months of the tenancy rental payments were often late, and on 7 November Maryanne advised that she did not intend to pay any further sum, inviting Syrina to “take me to Court, you have more to lose than I do”.

[6] Syrina’s lengthy affidavit in support of her formal proof application recounts a long history of uncooperative behaviour on the part of Maryanne who, in response to

seemingly reasonable requirements that she meet her…

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 Pene v Pene

Details

AGLC: Pene v Pene [2018] NZHC 3140
Case: [2018] NZHC 3140
Decision Date: 3 December 2018

CaseChat Overview and Summary

Syrina Pene applied for an order for sale of a property located at 11 Cadman Street, Waharoa, under s 339 of the Property Law Act 2007. Syrina and Maryanne Pene own the property as tenants in common in equal shares. Syrina seeks an order for sale of the property and division of the proceeds among the co-owners. Syrina also seeks supplementary orders under s 343 of the Act. The court was required to decide whether to make an order under s 339(1) of the Act and if so, the terms of the order. The court found that an order should be made for sale of the property and division of the proceeds among the co-owners. The court also found that Syrina is appropriately compensated for Maryanne's occupation of the premises and that Syrina is appropriately compensated from Maryanne's share of the sale proceeds for half of the contributions identified in para [16] above. The court found that the appropriate reserve price in respect of the sale is $225,000. The court found that the sale proceeds should be applied in the following order: (a) The relevant costs of sale, including legal conveyancing fees, advertising, auctioneer and real estate agent's costs and any costs associated with representation of the property for sale. (b) Reimbursement to Syrina of the sum of $8,769.70 in respect of contributions and unpaid occupation rent together with the sum of $150 per week for every week after 31 July 2018 until the defendant ceases occupation. (c) The balance to be paid to Syrina and Maryanne's nominated bank accounts in equal shares subject to the order as to any order as to costs in the present proceedings. The court made the following orders: (a) That the plaintiff is authorised to sell the property situated at 11 Cadman Street, Waharoa, being Lot 3, Deposited Plan SA 21C/1176 South Auckland 3024 on the following terms: (i) The plaintiff is to appoint L J Hooker Matamata as real estate agent to act on the sale. (ii) The property is to be sold by either auction or by private treaty and in either case at a minimum sale price of $225,000. (iii) In the absence of orders by the Tenancy Tribunal terminating the residential tenancy in favour of the defendant (or the tenancy being otherwise lawfully terminated), the property is to be sold subject to the existing residential tenancy agreement dated 4 February 2017. (iv) No sale may be made to the plaintiff or interests associated with her without further application to the Court. (v) The plaintiff is authorised to engage Norris Ward McKinnon Solicitors to act in respect of the sale. (vi) The plaintiff is authorised to sign all such documents as are necessary to effect a transfer of the property. (vii) Norris Ward McKinnon are authorised to act on the sale, transfer and subsequent division of the sale proceeds. (b) That the proceeds of sale be applied as follows: (i) To the plaintiff by way of reimbursement (or by way of direct payment to relevant third parties) of the costs and expenses associated with the sale including legal, conveyancing fees, advertising, auctioneer and real estate agent's costs, payment of arrears of rates, water rates and insurances, and any required maintenance to the property. (ii) The nett sum after deduction of such costs to be divided into two equal portions. (iii) From the defendant's 50 per cent share, the following sums to be paid to the plaintiff: 1. The sum of $12,427.00 on account of costs as calculated in accordance with the Schedule annexed hereto. 2. The sum of $919.70, being 50 per cent of the total value of the items specified in paragraph [16] hereof. 3. Such sum as is necessary to compensate the plaintiff in respect of the defendant's occupation of the property since December 2016 having regard to: a. the plaintiff's entitlement to 50 per cent of an assessed occupation nett of $300 per week. b. a liability of $7,850 as at 31 July 2018 and $150 per week thereafter. c. such sum as the defendant has paid (either voluntarily or pursuant to order of the Tenancy Tribunal) at the point division of the proceeds is made. (iv) The balance held to the plaintiff and defendant's respective accounts is to be then paid to them or at their direction. The court reserved leave to the plaintiff to apply to the Court for a variation of these orders to the extent necessary to give practical effect to the sale and to subsequent division of the proceeds thereof.

Orders