Ramsey v Mercer - [2013] NZHC 2659

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…

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 Ramsey v Mercer

Details

AGLC: Ramsey v Mercer [2013] NZHC 2659
Case: [2013] NZHC 2659
Decision Date: 17 October 2013

CaseChat Overview and Summary

The plaintiffs, Donald Ramsey and Lynette Ramsey, sought an order for the sale of a property at 162 State Highway 10, Coopers Beach, and the division of the proceeds. They claimed that they had loaned the defendant, Colin Mercer, $220,000 interest-free to enable him to purchase the property. The agreement between the parties provided that the loan was to be repaid when Mr Mercer sold his property at Okaihau. As he had not been able to sell that property, the Ramseys sought an order for sale. Mr Mercer opposed the application and argued that the agreement bound the Ramseys to wait for the sale of Okaihau. The court had to decide whether the Ramseys were entitled to an order for sale and division of proceeds. The court considered the nature and location of the property, the extent of the shares of the co-owners, the hardship that would be caused to the applicant by the refusal of the order, and the value of any contributions made by any co-owner to the cost of improvements to, or the maintenance of, the property. The court found that the agreement was a bridging arrangement and that the parties had not addressed the circumstance of Mr Mercer's inability to sell Okaihau. The court concluded that the Ramseys were entitled to an order for sale to enable them to be repaid the loan they made to Mr Mercer. The court adjourned the application to enable the parties to reach agreement on how a sale ought to be conducted. If the parties were unable to reach agreement, the court would give further directions after hearing the parties.

Orders