IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2013-488-229 [2013] NZHC 2659
BETWEEN DONALD RAMSEY and LYNETTE RAMSEY
Plaintiffs
ANDCOLIN WILLIAM MERCER Defendant
Hearing: 14 October 2013
Appearances: P Moodley for Plaintiffs
R Harte for Defendant
Judgment: 17 October 2013
JUDGMENT OF ASSOCIATE JUDGE BELL
This judgment was delivered by me on 17 October 2013 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar
Solicitors:
Brookfields, Auckland, for Plaintiffs
R Harte, Whangarei, for Defendant
RAMSEY and RAMSEY v MERCER [2013] NZHC 2659 [17 October 2013]
[1] The plaintiffs and the defendant own the property at 162 State Highway 10, Coopers Beach, as tenants in common in equal shares. The property is Mr Mercer’s retirement home. The Ramseys live at Tuakau. The Ramseys’ proceeding is under Part 6, subpart 5 of the Property Law Act 2007. They seek an order for the sale of the property and the division of the proceeds. They have applied for summary judgment.
[2] 162 State Highway 10, Coopers Beach, is a residential property of 809 m2 with a two-storey dwelling house. The lower floor is used is used as a flat. Mr Mercer lives on the upper floor. The property was apparently developed in the
1970s. The property is on two titles: NA76C/555 and NA76C/556. These are cross- lease titles, with the freehold interests divided one-third to two-thirds between NA76C/555 at the front and NA76C/556 at the rear. Flat 1 comprises only the living quarters on the lower level, while Flat 2 includes both the garage on the lower level and the upper floor.
[3] In May 2008 Mr Mercer signed an agreement to buy the property for
$440,000. The purchase was to settle on 20 November 2008. There was a deposit of
$44,000. Mr Mercer did not have the funds to meet the deposit. His sister and brother-in-law (the Ramseys) lent him $44,000 to cover the deposit. Mr Mercer borrowed $220,000 from a bank to buy the property, but he could not raise the balance of the purchase price. The Ramseys came to his help. They lent him, in all,
$220,000. The Ramseys and Mr Mercer entered into an agreement on 19 November
2008 to record the arrangement. It included these provisions:
2 The Coopers Beach property shall be registered in Colin’s name as
to a half share and Don and Lyn jointly inter se as to a half share.
3Colin shall borrow $220,000 (the loan) from Don and Lyn, which amount includes the deposit of $44,000 to enable Colin to purchase the Cooper’s Beach property.
4 Don and Lyn shall pay to Colin, or Colin’s lawyer, on or before the
20th day of November 2008 or such other date as is mutually agreed upon, the sum of $220,000.
5Colin shall repay the loan, without interest, to Don and Lyn upon the settlement of the sale of Colin’s property at 1377 State Highway 1, RD 2, Okaihau (the Okaihau property).
6 Upon payment by Colin to…
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