Phillipps v Phillipps - [2019] NZHC 15

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002381

[2019] NZHC 15

UNDER the Property Law Act 2007

IN THE MATTER OF

an application under s 339 of the Act for the sale of property and the division of sale proceeds among co-owners and for orders under s 343 of the Act

BETWEEN

DEAN LIONEL PHILLIPPS

First Plaintiff

TODD RAYMOND PHILLIPPS
Second Plaintiff

AND

LORNA JUNE PHILLIPPS

Defendant

Hearing: 11 December 2018

Appearances:

K L Wendt for the Plaintiffs

No Appearance of, or for the Defendant

Judgment:

21 January 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 21 January 2019 at 11.00 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel: K L Wendt, Auckland

Solicitors: GM Legal Ltd, Auckland

PHILLIPPS v PHILLIPPS [2019] NZHC 15 [21 January 2019]

[1] The parties to this proceeding are three siblings who are registered owners of a property at 42 Parakai Avenue, Parakai (Property). The plaintiffs seek an order of sale of the Property, and supplementary orders, by way of summary judgment.

[2] The defendant, Lorna Phillipps, is currently occupying the Property with five of her children. She was served with the application for summary judgment on 5 November 2018 but has taken no steps in the proceeding, and did not appear when the application was called on 11 December 2018.

[3] The parties’ fourth sibling, Cindy Phillipps, is not a registered owner of the Property but has an equitable interest in it. Each of the siblings is entitled to an equal quarter-share of the sale proceeds of the Property. Cindy supports the sale of the Property.

Background

[4] The Property was previously owned by the parties’ father. It was left to his four children equally when he died in October 2008. Todd Phillipps, the second plaintiff, lived in the Property for approximately seven-and-a-half years, paying all outgoings and maintaining the Property.

[5] In March 2015, Cindy agreed to sell her quarter-share in the Property to the other three siblings in return for a quarter-share of the net proceeds of sale of the Property when it was eventually sold.

[6] Lorna moved into the Property with her children in 2016. Although she did not seek the consent of her siblings before doing this, neither of them objected at the time. In an affidavit in support of the application, the first plaintiff, Dean Phillipps, says that Lorna agreed to pay all the outgoings, maintain the Property and to vacate it if the other siblings wanted it to be sold.

[7] In 2018, the plaintiffs decided to sell the property. This was discussed with Lorna in February 2018. Dean says that Lorna initially agreed to sell the property but subsequently avoided signing a listing authority with a real estate agent.

[8] On 20 February 2018, the plaintiffs’ lawyers sent Lorna a letter asking her to confirm her agreement to the sale, and putting…

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 Phillipps v Phillipps

Details

AGLC: Phillipps v Phillipps [2019] NZHC 15
Case: [2019] NZHC 15
Decision Date: 21 January 2019

CaseChat Overview and Summary

The plaintiffs, Dean Lionel Phillipps and Todd Raymond Phillipps, sought an order for the sale of a property at 42 Parakai Avenue, Parakai, which they jointly own with their sister, Lorna June Phillipps. They also sought supplementary orders for the division of sale proceeds and for Lorna to pay their legal costs. The dispute arose due to Lorna's refusal to vacate the property and her opposition to its sale. The court was required to decide whether an order for the sale of the property should be granted and if so, what supplementary orders should accompany the sale. The court also had to consider the relevant factors in determining whether to grant summary judgment and whether to award costs.

The court found that the plaintiffs had established that there was no real question to be tried, and thus, the summary judgment procedure was appropriate. The court considered the factors under section 342 of the Property Law Act 2007, including the nature and location of the property, the number of co-owners, and the hardship caused to each party if the sale order was not granted. The court determined that the hardship to the plaintiffs of not selling the property outweighed any hardship to Lorna and her children. The court found that the only possible outcome was the sale of the property. The court granted the plaintiffs' application for sale and made supplementary orders for the distribution of sale proceeds and the payment of legal costs. The court awarded the plaintiffs costs on a schedule 2B basis and disbursements.

Orders