Robertson v Robertson - [2021] NZHC 3251

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002655

[2021] NZHC 3251

UNDER Section 339 of the Property Law Act 2007

BETWEEN

CONRAD CHRISTIAN ROBERTSON

Plaintiff

AND

MARTIN JAMES ROBERTSON

Defendant

Hearing: 19 November 2021

Appearances:

R Hollyman QC and K Dillon for the Plaintiff G Kohler QC for the Defendant

Judgment:

1 December 2021

JUDGMENT OF WALKER J

This judgment was delivered by me on 1 December 2021 at 10 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

ROBERTSON v ROBERTSON [2021] NZHC 3251 [1 December 2021]

Introduction

[1] This judgment is the sequel to an interim judgment delivered on 2 September 2020, and a decision of the Court of Appeal dismissing an appeal against the interim judgment.1

[2] Three matters arise for determination before the judgment may be finalised. Further affidavits have been filed along with written submissions. A further hearing was also convened.

[3] The full background is set out in the interim judgment. All three judgments should be read together. By way of brief summary to provide context, the parties are brothers who jointly own a property at 51 Alnwick Street, Warkworth (the Property).2 They have fallen out. Conrad operates his boat building business from the property and has done so for over 40 years, the last 25 years without his brother. Spurred by a desire to expand and modernise his business, Conrad wishes to own the property outright to ensure security of tenure. Martin wishes to develop the residential potential of the property as part of a joint venture.

[4] As their intentions for the property not only diverge but are essentially incompatible, Conrad applied to the Court by originating application for an order for sale under s 339 of the Property Law Act 2007 (the Act) subject to a one year lease in favour of his business in the event he is not the successful bidder on sale. He then amended his application. He sought orders for sale (on different terms). In the alternative, he sought partition of that part of the Property occupied by his business which he could purchase at a fair market value fixed by the Court with the balance of the Property sold to either party on the same basis. By the time of the first hearing, his preference was for partition rather than sale. Various permutations of partition, with differing degrees of complexity, were presented to the Court.

[5] Conrad’s position was not the only one which evolved. Initially opposing sale by auction, Martin’s preference by the time of the first hearing was for sale by auction

1 Robertson v Robertson [2020] NZHC 2272, (2020) 21 NZCPR 875 [Interim judgment]; Robertson v Robertson [2021] NZCA 295 [Appeal judgment].
2 In view of the shared surname, I refer to the parties by their first names to avoid confusion.

subject to a nine month deferred settlement to enable him to liquidate some assets to enable him to bid…

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] NZHC 3251
Case: [2021] NZHC 3251
Decision Date: 1 December 2021

CaseChat Overview and Summary

The case of Robertson v Robertson involves a dispute between brothers Conrad and Martin Robertson, who jointly own a property in Warkworth. Conrad operates a boat building business from the property, while Martin wishes to develop the residential potential of the property. The court was required to decide on the appropriate course of action for the property, considering the brothers' diverging and incompatible intentions. The legal issues included whether an order for sale or partition was more appropriate, and whether further conditions could be imposed on the sale order. The court considered the critical importance of Conrad's boat building business, and the potential hardship of relocating the business. The court ultimately decided that sale by auction was the most equitable and just solution, and made orders for the sale of the property by auction, with certain conditions and clauses included in the agreement for sale and purchase. The court also made orders regarding the marketing and sale of the property, and reserved costs pending any agreement between the parties.

The court's reasoning was based on the mandatory considerations outlined in s 342 of the Property Law Act 2007, as well as the respective interests and hardships of the parties. The court found that partition was not a practical option due to the insurmountable practical hurdles and the brothers' inability to work productively together. The court also found that Conrad's arguments for imposing further conditions on the sale order were an attempt to relitigate fundamental matters already determined, and were therefore inappropriate. The court emphasised the importance of balancing the respective interests of the parties, and providing Conrad with a sufficient period of time to find an alternative location for his business.

The outcome of the case was that the property would be sold by auction, with certain conditions and clauses included in the agreement for sale and purchase. The court made orders for the marketing and sale of the property, and reserved costs pending any agreement between the parties. The court's decision was based on a careful consideration of the legal issues, the respective interests of the parties, and the practicalities of the situation. The court emphasised the importance of providing a just and equitable outcome for both parties, while also recognising the critical importance of Conrad's boat building business.

Orders