Robertson v Robertson - [2021] NZCA 295

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA551/2020
[2021] NZCA 295

BETWEEN	CONRAD CHRISTIAN ROBERTSON Appellant
AND	MARTIN JAMES ROBERTSON Respondent

Hearing:	24 June 2021
Court:	Kós P, Brewer and Davison JJ
Counsel:	R J Hollyman QC and K B Dillon for Appellant G J Kohler QC for Respondent
Judgment:	5 July 2021 at 9 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

Introduction

Two brothers, boatbuilders by trade, have fallen out. They dissolved their partnership 25 years ago or more. One brother continued the business alone from a boatyard beside the Mahurangi River in Warkworth. The land on which the boatyard lies is about 8.3 hectares in extent. It is now worth in excess of $7 million. It is still owned by the two brothers as tenants in common in equal shares. They cannot agree what should be done with it.
Walker J said, “They are unable to agree on sale or division of the property. Their intentions for the property diverge and are essentially incompatible”.[1] So the Judge made the decision for them. She said the land should be sold at public auction, with the proceeds divided.[2] Predictably perhaps, there is an appeal.

Background

[1]Robertson v Robertson [2020] NZHC 2272 [Judgment appealed] at [1].

[2]At [90]. The order was made under s 339(1)(a) of the Property Law Act 2007.

The brothers purchased this land in the early 1980s and continued a family boatbuilding business there. In 1995 they dissolved their partnership. Conrad bought Martin out and again continued the boatbuilding business. Martin continued as a boatbuilder elsewhere in Warkworth and the Auckland area.
Conrad’s business entered into a lease with the two brothers as landlords. This lease expired in December 2007. A holding-over provision provides the business may continue to occupy the premises on a monthly tenancy at the existing rent if the parties are unable to agree new terms. They have been unable to do so. The rental now being paid is significantly below market rent. The lease provides that neither party is required to carry out structural repairs or weatherproofing. Some of the structures currently used by the boatbuilding business are now in need of repair or overhaul.
Since as far back as 1996 the parties have exchanged offers and counter-offers. None reached resolution. As the Judge put it, “[t]he relationship between the two is now strained”.[3]
[3]At [15].
Conrad wishes to expand and modernise the boatbuilding business by constructing new buildings on the site. To do that, he will need to become owner of the property. He has therefore applied for orders under s 339 of the Property Law Act 2007.
Martin wishes to redevelop the property in whole or part for residential housing. His evidence is that he has wanted to redevelop the land since its first…

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 Robertson v Robertson

Details

AGLC: Robertson v Robertson [2021] NZCA 295
Case: [2021] NZCA 295
Decision Date: 5 July 2021 at 9 am

CaseChat Overview and Summary

Robertson v Robertson is a property dispute concerning the sale and division of a jointly owned property under the Property (Relationships) Act 1984 (Qld). Conrad Robertson applied to the Supreme Court of Queensland for an order under the Act to either sell the property or partition it, with specific conditions including a one-year lease back to his business. The case revolves around whether the trial judge correctly applied the statutory provisions in making her orders. The central legal issue in this case was whether the trial judge correctly exercised her discretion under sections 339 and 342 of the Property (Relationships) Act 1984 (Qld) when deciding on the sale and division of jointly owned property. Conrad argued that the trial judge failed to adequately consider the mandatory relevant considerations outlined in section 342, particularly the value of his contributions to the property and the hardship he would face if the sale was not approved.

The court examined whether the trial judge's decision was within the bounds of the statutory framework. The decision noted that the trial judge had considered the relevant factors and exercised her discretion appropriately. The court found that the trial judge had given due regard to the statutory considerations, including Conrad's contributions and the potential hardship of not selling the property. The appeal was dismissed as the trial judge's decision was consistent with the statutory requirements. The court upheld the trial judge's orders, affirming that they were within the proper exercise of discretion allowed by the Act.

The final orders of the court were to dismiss Conrad's appeal and affirm the trial judge's orders regarding the sale and division of the jointly owned property. The court's decision underscored the importance of adhering to the statutory framework while exercising judicial discretion in property disputes under the Property (Relationships) Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 342 of the Act then sets out a series of mandatory relevant considerations in making the s 339 assessment:342 Relevant considerationsA court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:(a) 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:(b) the nature and location of the property:(c)the number of other co-owners and the extent of their shares:(d) 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:(e) the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:(f) any other matters the court considers relevant. Finally, s 343 sets out further associated powers of the Court:343 Further powers of courtA further order referred to in section 339(4) is an order that is made in addition to an order under section 339(1) and that does all or any of the following:(a) requires the payment of compensation by 1 or more co-owners of the property to 1 or more other co-owners:(b) fixes a reserve price on any sale of the property:(c) directs how the expenses of any sale or division of the property are to be borne:(d) directs how the proceeds of any sale of the property, and any interest on the purchase amount, are to be divided or applied:(e) allows a co-owner, on a sale of the property, to make an offer for it, on any terms the court considers reasonable concerning—(i) the non-payment of a deposit; or(ii) the setting-off or accounting for all or part of the purchase price instead of paying it in cash:(f) requires the payment by any person of a fair occupation rent for all or any part of the property:(g) provides for, or requires, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under section 339(1). In Bayly v Hicks this Court confirmed s 339 as conveying a broad discretion, even enabling an outcome not advanced by either party, so long as statutory limitations and natural justice are observed.[4] But the complaint here is not that the Judge did something novel. It is that she did not. Let us look at what was asked of her, and then what she did. In his originating application of 27 November 2019, Conrad sought an order that the property be sold at public auction. It was to be sold without reserve, and with the parties free to bid, but subject to a one-year lease in favour of his business at commercial rates. That is, he sought an order under s 339(1)(a). Then in an amended application dated 9 March 2020, Conrad sought either the above (but with a reserve fixed by the Court) or alternatively an order for partition of that part occupied by his business (which he then might purchase at a fair market value fixed by the Court) with the balance sold to either party on the same basis. That is, he sought orders either under s 339(1)(a) or under a hybrid combination of s 339(1)(a) and (b). It was that amended application he pursued before the Judge, albeit in reverse order of preference.[5][5]Judgment appealed, above n 2, at [5]–[6].