Roberts v Mauga - [2024] NZHC 3047

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2024-463-126

[2024] NZHC 3047

BETWEEN
MOEWAI ROBERTS

Plaintiff

AND

MARAMOA MAUTIKI MARGARET- ANNE MAUGA

First Defendant

MICHAEL KAHU WILSON

Second Defendant

Hearing: On the papers

Appearances:

Tim Conder/Jayden McNeil for the Plaintiff

Judgment:

18 October 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for leave under r 19.5 of the High Court Rules 2016]

This judgment was delivered by me on 18 October 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Holland Beckett (Tim Conder/Jayden McNeil), Tauranga, for the Plaintiff

ROBERTS v MAUGA [2024] NZHC 3047 [18 October 2024]

Introduction

[1] The applicant, Ms Moewai Roberts, has applied by without notice interlocutory application dated 2 October 2024 for leave to commence a proceeding by originating application. The application seeks an order permitting the proceeding, being a proceeding not mentioned in rr 19.2 to 19.4 of the High Court Rules 2016, to be commenced by originating application pursuant to r 19.5.

Background

[2] The proposed originating application is for orders under ss 339 and 343 of the Property Law Act 2007 (the PLA), being a proceeding not specifically provided for in r 19.2.

[3] The applicant is the owner of a half share in a property located at 8 Matahi Valley Road, Waimana, being an estate in fee simple contained in record of title 316284 (the Property).

[4] The respondents are executors and trustees of the estate of Celia Kahu Wilson Tutauha (the deceased). The deceased remains the registered owner of the other half share of the Property, despite passing away on 2 October 2009. Probate in the deceased’s estate was not granted until 19 October 2023 and the deceased’s share in the Property has not been transmitted to the respondents as executors, nor distributed to the named beneficiaries.

[5] The Property is land only and is currently leased to the neighbouring property which operates as a dairy unit and uses the Property for grazing (the Lease). The Lease expired in 2007 but the tenant has continued to occupy the Property. The applicant has not been able to re-negotiate the lease terms or enter into a new lease as the respondents refuse to engage with the applicant and the lease rental remains at
$7,000 plus GST per annum (the current rental). All outgoings are deducted from the current rental before payment to the applicant and the respondents. A current market appraisal of the Property as annexed to the affidavit of Phillip Mervyn Berry

dated 20 August 2024 indicated the rental returns on the Property should be in the range of $36,000 to $48,000 per annum, and the Property has an indicative sale price of $1.729 million to $1,975 million.

[6] The applicant says that the current rental of the Property is severely undervalued and that she is unable to unilaterally cancel the Lease as the respondents refuse 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 Roberts v Mauga

Details

AGLC: Roberts v Mauga [2024] NZHC 3047
Case: [2024] NZHC 3047
Decision Date: 18 October 2024

CaseChat Overview and Summary

In Roberts v Mauga, Moewai Roberts, the owner of a half share in a property in Waimana, sought leave to commence proceedings by originating application to obtain an order for the sale of the property and division of the proceeds. The property is jointly owned with the deceased, Celia Kahu Wilson Tutauha, whose estate has not been settled. The property is currently leased to a neighbouring dairy unit for significantly below market value, causing financial strain on Roberts. The court had to decide whether Roberts' application for leave to commence the proceeding by originating application under rule 19.5 of the High Court Rules 2016 should be granted.

The court considered whether the proceeding was amenable to the originating application procedure, which is appropriate for straightforward applications that do not involve detailed pleadings or complex factual disputes. The court noted that the application under the Property Law Act 2007 involves a statutory test and is narrowly defined. The court also considered the hardship faced by Roberts, who has been unable to re-negotiate the lease or sell the property due to the respondents' refusal to engage. The court found that a speedy and inexpensive resolution was in the interests of justice, making the originating application procedure appropriate.

The court granted Roberts' application for leave, allowing her to commence the proceeding by originating application. The court emphasised that the proceeding was suitable for the streamlined procedure due to its straightforward nature and the defined statutory tests involved. The court also noted the financial strain on Roberts and the need for a quick resolution. Costs were reserved for a later determination.

Orders