Rio v Haturini - [2021] NZHC 3217

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-463-9

[2021] NZHC 3217

UNDER Part 12 and 13 of the High Court Rules 2016 and Part 6, subpart 5 of the Property Law Act 2007

IN THE MATTER

of summary proceedings for recovery and sale of land and occupation rent

BETWEEN

LUCY MARGARET RIO, JADE KELLY KAHURANGI OSBORNE and ASHLEY HINEWAI GEORGINA OSBORNE

Plaintiffs

AND

EVELYN HATURINI and NEPIA HAMIORA HATURINI

First Defendants

EDNA OSBORNE

Second Defendant

Hearing: 10 November 2021

Appearances:

N Bradley for Plaintiffs

E Haturini and N Haturini First Defendants in person No appearance for Second Defendant

Judgment:

29 November 2021

JUDGMENT OF MUIR J

This judgment is delivered by me on 29 November 2021 at 11:00am pursuant to r 11.5 of the High Court Rules.

Solicitors:
Robinson Law, Whakatāne And to:
Ms E and Mr N Haturini

Copy to: Ms E Osborne

.....................................................

Registrar / Deputy Registrar

RIO v HATURINI [2021] NZHC 3217 [29 November 2021]

Introduction

[1] This is an application under s 339 of the Property Law Act 2007 (the Act) for an order for sale of a property in Tāneatua. The five owners of the property are all relatives. Each received their share of the property under the will of their (respectively) mother, grandmother or great grandmother. Three of the five (the plaintiffs) wish to go their separate ways after a long period of family disharmony. Two of the five wish the house retained.

Background

[2] The late Valerie Hape (Valerie) was the owner of a modest 90 square metre home in Tāneatua. Current online estimates of value are in the order of $225,000 to
$250,000. Valerie died a little over 10 years ago.1

[3] By her will dated 21 May 2002 (the Will), she left the Tāneatua house in equal shares to her daughter Lucy Rio (Lucy), Lucy’s two daughters and co-plaintiffs, Jade and Ashley Osborne (Jade and Ashley) and to a grand-daughter, the first-named first defendant Evelyn Haturini (Evelyn) and her son, Nepia Haturini (Nepia). Nepia was, at the time of Valerie’s death, about 10 years old. The gift was expressed to be to such of the named parties as “survive me and attain the age of 20 years and if more than one as tenants in common in equal shares”. Lucy was appointed sole executor and trustee. The property remains in her name at this time pending Nepia’s imminent 20th birthday.

[4] In the years since Valerie’s death various family members have lived in the house including initially Lucy, her husband and their children. They undertook significant renovations including new carpet, fencing, front deck, joinery replacement and installation of an HRV system. Later, after Lucy indicated a desire to move to Australia, the house was occupied by others including latterly her sister Edna, Edna’s partner and various of Edna’s immediate family members. Initially they paid an agreed rent of $250 per week to the estate.

1 Date of death: 27 March…

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 Rio v Haturini

Details

AGLC: Rio v Haturini [2021] NZHC 3217
Case: [2021] NZHC 3217
Decision Date: 29 November 2021

CaseChat Overview and Summary

This case concerns an application by three of the five owners of a house in Tāneatua for an order for sale of the property and for possession against one of the other owners who had ceased paying rent. The house was left to the applicants, their aunt and two cousins in equal shares by the will of their grandmother, Valerie Hape. The applicants seek a sale of the property due to family disharmony, financial burden and lack of income from the property. The fourth defendant, Edna, opposes the sale because she wishes to occupy the property in the future. The applicants also seek an order for possession against Edna for non-payment of rent and an order for payment of occupation rent.

The court had to decide whether to grant the applicants' orders for sale and possession and, if so, on what terms. The court considered the statutory criteria in s 342 of the Property Law Act 2007, which require the court to have regard to the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made; the nature and location of the property; the number of other co-owners and the extent of their shares; the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order; the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property; and any other matters the court considers relevant.

The court found that the applicants together have an equitable 60 per cent interest in the property. The property is of modest value and was acquired and the mortgage over it ultimately repaid as a result of Valerie’s hard work and dedication to family. The court accepted that Valerie saw it as a family home to be left to those who had a commitment to the area or had lived in the house for significant periods. The court also accepted Evelyn’s emotional commitment to the property by virtue of the kindness and support which Valerie demonstrated to her earlier in life, and Evelyn’s long period of residency there. However, the court found that the applicants had borne a heavy burden both financially and emotionally due to Edna’s cessation of rent payments and the breakdown of their relationship. The court concluded that a sale order was appropriate because it was supported by a majority of owners, was made against a background of family discord, and ongoing occupation of the home by family members had the very real capacity to perpetuate tensions into the future.

The court also found that an order for possession was appropriate under pt 13 of the High Court Rules because Edna’s former occupation right could be characterised as an occupation licence which came to an end on 2 October 2020 following one month’s notice. Subsequent service of a trespass notice confirmed that position. The court further found that the claim for “occupational rent” was properly quantified by reference to the rent formerly and voluntarily paid by Edna. The court granted the applicants' orders for sale and possession and ordered that the property be sold on the open market with certain terms and conditions. The court also ordered Edna to pay $14,000 in occupation rent to Lucy as executor and trustee of the estate of Valerie Hape. The court further ordered that the orders for sale and possession lie in Court until 1 February 2022 to facilitate a possible interim offer by, or on behalf of the first defendants.

Orders