Pithie v Dodge HC Christchurch CIV-2010-409-002651

[2011] NZHC 236

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-002651

UNDER  the Property Law Act 2007

IN THE MATTER OF     an application under s 339(c) BETWEEN  BARBARA PITHIE

Plaintiff

ANDPAULA HENRIETTA DODGE Defendant

Hearing:         22 March 2011

(Heard at Wigram Airbase)

Counsel:         K N Williams for Plaintiff

No appearance for Defendant

Judgment:      22 March 2011

ORAL JUDGMENT OF HON JUSTICE FRENCH

[1]      The plaintiff, Ms Pithie, has applied for an order under s 339(1)(c) of the Property Law Act 2007.  The application has been served on the defendant, who is Ms Pithie’s daughter.  The daughter now resides in Australia.  She has taken no steps in the proceeding, and accordingly the matter has proceeded today by way of formal proof.  I am satisfied that it was appropriate for the matter to proceed on that basis.

[2]      In support of her application, Ms Pithie has filed an affidavit.  This sets out the relevant facts:

(i)       Ms Pithie and her daughter purchased a property jointly at 6

Dallington Terrace, Christchurch, being Lot 2 on Deposited

Plan 25908. The purchase price was $422,000.

PITHIE V DODGE HC CHCH CIV-2010-409-002651 22 March 2011

(ii)Ms Pithie advanced $74,000.   Her daughter, Ms Dodge, did not introduce any capital into the purchase.  The balance of the purchase price was secured by first mortgage from ASB bank at $348,000.

(iii)Settlement took place on 26 September 2008 and the parties were registered at joint tenants.

(iv)At the time of the purchase, Ms Dodge had six dependent children.     Ms  Pithie  had  one  dependent  child  who  was disabled.

[3]      On 24 September 2008, ie two days before settlement, the parties signed a written deed of arrangement relating to the disposition of the sale proceeds should the property be sold.   The deed of arrangement set out the financial contributions towards the purchase and recorded an agreement that in the event of the parties selling the property, the proceeds would be divided:

(i)       repayment of any mortgage;

(ii)      repayment of Ms Pithie’s $74,000;

(iii)     the  balance  to  be  divided  equally  between  Ms  Pithie  and

Ms Dodge.

[4]      It was also agreed, although not recorded in the deed of arrangement, that both would contribute to the property outgoings, including rates, insurance, maintenance and mortgage repayments.   Unfortunately, in September 2009, there appears to have been a falling-out, which resulted in Ms Dodge leaving the property and ceasing to make any contributions towards the outgoings.

[5]      Without  her daughter’s  financial  support,  Ms  Pithie could  not  afford  the outgoings, so had to take in boarders to cover the costs.  She says in her affidavit that requests to her daughter to meet her share of the outgoings failed.

[6]      On 4 September 2010 the property was significantly damaged as a result of the Christchurch earthquake.   It was considered uninhabitable due to structural damage and ground subsidence. As a result, Ms Pithie and her disabled daughter had to vacate the property and have been living in rental accommodation since.

[7]      Problems have now arisen and Ms Pithie is in limbo.  What has happened is that EQC has paid out their contribution, with the funds sitting as a credit in the bank.   However, the insurers of the property are unwilling to negotiate with Ms Pithie regarding the repairs or remediation of the property as she is currently only a co-owner.  The defendant, Ms Dodge, is refusing or failing to take any active part in settling the insurance claim, and in December 2010 as I have said, emigrated to Australia.

[8]      Ms Pithie wants to be able to settle the insurance claim and re-establish a home for herself and her disabled child.

[9]      I am satisfied, having regard to s 339 and the factors I am required to take into account under s 342, that the application should be granted.

[10]     I accordingly make orders as follows:

(i)The property at 6 Dallington Terrace, Christchurch is to be transferred from Barbara Pithie and Paula Henrietta Dodge as joint tenants to Barbara Pithie, on the basis:

a.   no consideration is paid;

b.  the purchase price for the transfer from Paula Henrietta Dodge to

Barbara Pithie be calculated:

1.1On  the  basis  the  section  can  be  built  upon,  as  the insured value of the house plus the value of the section (to be determined by a registered valuer), less:

(i)the full value of the mortgage at the time compensation is settled with the insurers and EQC;

(ii)the  sum  of  $74,000,  being  the  cash  the  plaintiff advanced at the time of settlement, being a credit to the plaintiff;

(iii)one half of the cost of outgoings including rates, insurances, since 4 September 2010;

(iv)     to allow a sum for the costs of these proceedings on a

1B scale and the costs associated with the valuations and negotiations with the insurers and EQC.

(iv)In  the  event  the  section  cannot  be  built  upon,  the  value  to  be determined by the value of the section plus any compensation paid by EQC for the section, plus any compensation paid by EQC and the insurers for the house, less (i), (ii), (iii), and (iv) above, with the balance to be credited equally to the plaintiff and the defendant.

[11]     Leave is reserved for Ms Pithie to seek further directions from the Court should the need arise.

Solicitors:

Williams & Co, Christchurch