Sillick v Sillick - [2020] NZHC 282

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-488-000039

[2020] NZHC 282

IN THE MATTER of an interlocutory application on Notice for Further Orders

BETWEEN

FRANZINA DE ANNA SILLICK

Applicant

AND

BRIAN EARL SILLICK

First Respondent

AND

DAWN KELLY SILLICK

Second Respondent

Hearing: On the papers

Judgment:

26 February 2020

JUDGMENT OF HINTON J

[Further orders]

This judgment was delivered by me on 26 February 2020 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules

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

Solicitors/Counsel:
Denham Bramwell, Manukau

SILLICK v SILLICK [2020] NZHC 282 [26 February 2020]

Introduction

[1]The plaintiff (applicant) applies for orders for vacant possession.

[2] On 23 March 2018, Jagose J gave judgment for the applicant and ordered the sale of the property she owns as tenant-in-common with the first and second defendants (respondents), Mr Brian Sillick and Ms Dawn Sillick, and division of the proceeds among the co-owners pursuant to s 339 Property Law Act 2007 (the Act).1

[3] Leave was reserved to the applicant to apply for any necessary consequential orders.2 The applicant now seeks the making of these orders.

[4] This matter has come before me because of my previous involvement in it. On 17 August 2017, I gave an interim judgment aimed at facilitating potential resolution of the parties’ dispute.3 Clearly those alternative proposals did not come to fruition.

Background

[5] The property belonged to the respondents’ mother, who was the applicant’s grandmother, who willed it to the parties. The applicant and Mr Sillick each hold 37.5 per cent shares in the property and Dawn Sillick a one-quarter share.

[6] The applicant has no wish to retain co-ownership of the property. Jagose J accepted that Mr Sillick was in occupation of the property and had been since his mother’s death and had made no contribution to its running costs. By June 2018, more than $22,000 had accrued in unpaid property and water rates. Communications with the Council had not, at the time of Jagose J’s judgment, provided definitive resolution of the Council’s claim in respect of those rates. As Jagose J noted, Mr Sillick’s failure to satisfy the liabilities on the property was in breach of a stipulation as to his continued occupation in the will.4

1      Sillick v Sillick [2018] NZHC 510.
2 At [15].
3      Sillick v Sillick [2017] NZHC 1969.
4      Above n 1 at [10(4)].

[7] The Judge considered that the applicant is the only owner of the three who had any prospect of meeting the outgoings on the property, but she had already met many of the costs incurred by the estate and could not afford to continue the expenditure.5 The respondents had each contributed less than $400 to the costs of the property.6

[8] Having considered these points, the fact no achievable alternative to the proposed orders had emerged,7 and having weighed the necessary matters,8 Jagose J was satisfied that the hardship to Mr Sillick and Dawn Sillick…

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 Sillick v Sillick

Details

AGLC: Sillick v Sillick [2020] NZHC 282
Case: [2020] NZHC 282
Decision Date: 26 February 2020

CaseChat Overview and Summary

In this case, Franzina De Anna Sillick sought orders for vacant possession of a property that was owned as tenant-in-common with her brother, Brian Earl Sillick, and her sister, Dawn Kelly Sillick. The court had previously ordered the sale of the property and the division of the proceeds among the co-owners. The applicant sought the making of necessary consequential orders, including orders requiring Brian Sillick to vacate the property and to bear the costs of obtaining these orders. The legal issues before the court were whether it had jurisdiction to make the orders sought and whether the orders should be made. The court found that it had jurisdiction under the inherent jurisdiction of the court to ensure its orders are given effect and section 343(g) of the Property Law Act 2007. The court also found that the orders should be made to prevent the frustration of the sale agreement and to give effect to the court's previous orders. The court ordered that Brian Sillick and any other person in occupation of the property must give vacant possession to the applicant by 5 pm on 13 March 2020. If Brian Sillick failed to comply with this order, the Sheriff at Whangarai, or the Sheriff’s duly authorised agent, together with any serving police officer, would be authorised to enter the property and remove Brian Sillick and any other person in occupation of the property from the property and remove their personal possessions. The costs and expenses of the removal and/or storage of these possessions would be borne by Brian Sillick out of his share of the proceeds of sale. The court also ordered that Brian Sillick would bear the applicant's actual and reasonable costs incurred in obtaining this order, to be paid from his share of the proceeds of the sale of the property.

Orders