Sillick v Sillick - [2018] NZHC 510

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2017-488-000039

- [2018] NZHC 510

UNDER section 339 of the Property Law Act 2007

IN THE MATTER

of an order regarding division of property amongst co-owners

BETWEEN

FRANZINA DE ANNA SILLICK

Plaintiff

AND

BRIAN EARL SILLICK

First Defendant

DAWN KELLY SILLICK

Second Defendant

Hearing: 14 March 2018

Appearances:

Anna Fuiava, for the plaintiff Second defendant in person

Robert McDowell, McKenzie friend

Judgment:

23 March 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 23 March 2018 at 3.00pm pursuant to r 11.5 of the High Court Rules.

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

Solicitors:
Denham Bramwell, Auckland And to Parties:

SILLICK v SILLICK & ANOR [2018] NZHC 510 [23 March 2018]

[1]In this proceeding, under s 339 of the Property Law Act 2007 (the “Act”):

(1)the plaintiff (“Fran”) seeks orders for sale of property she owns as tenant-in-common with the first (“Brian”) and second (“Dawn”) defendants, and division of the proceeds among the co-owners; and

(2)Dawn seeks alternative orders for division of the property in kind among the co-owners.

As co-owners, Fran and Dawn have standing to make such applications.1

[2] Because the parties have a common surname, and for ease of their reading this judgment, I mean no disrespect by referring to them by their given names, as were used in Court.

[3] Brian has not participated in any aspect of this proceeding, the genesis of which is explained in Hinton J’s interim judgment of 17 August 2017,2 and minute of 17 October 2017. Critically, no alternative to the orders now sought has been achievable.

Background

[4] The property is a relatively small rural block on the outskirts of Kaitaia. It belonged to the defendants’ mother, the plaintiff’s grandmother, Lucy Rihi Sillick. Lucy left the property to the parties in her will, as amended. Fran and Brian each have a 37.5 per cent share in the property; Dawn has a 25 per cent share in the property.

[5] The property has a 1 August 2016 rating valuation of $315,000, comprising land valued at $175,000 and improvements valued at $140,000. A registered valuation of the property’s land value only (instructed on the basis the property’s “buildings are significantly derelict, and gaining access to the building [sic] may also be difficult”) at 14 September 2017 was $160,000.

1 Property Law Act 2007, s 341(1)(a).
2 Sillick v Sillick [2017] NZHC 1969.

[6] By June 2018, the parties are forecast to have accrued more than $22,000 in unpaid property and water rates to the Far North District Council. On 1 September 2017, Dawn responded to the Council’s then rates statements, saying “Unfortunately we are unable this time [sic]; we are however in a position to pay a sizeable portion of total outstanding; with the remainder to be paid upon [sic]”. The Council replied:

Your payment proposal…

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 [2018] NZHC 510
Case: [2018] NZHC 510
Decision Date: 23 March 2018

CaseChat Overview and Summary

The High Court of New Zealand was presented with a case involving a dispute over the division of a rural property located on the outskirts of Kaitaia. The property was inherited by Franzina De Anna Sillick (Fran), Brian Earl Sillick (Brian), and Dawn Kelly Sillick (Dawn) as tenants-in-common following the death of their grandmother, Lucy Rihi Sillick. The dispute arose when Fran sought orders for the sale of the property and division of the proceeds among the co-owners, while Dawn sought alternative orders for the division of the property in kind. Brian, who occupied the property, did not participate in the proceedings.

The central legal issue before the court was whether to grant Fran's application for a sale order or Dawn's application for a division of the property in kind. The court was required to consider the relevant factors outlined in section 342 of the Property Law Act 2007, including the extent of the shares in the property, the nature and location of the property, the hardship caused by refusal or making of the order, and any other matters the court considered relevant.

The court found that the most influential factor was the relative hardship the parties would face under each proposed order. The court noted that Fran and Brian would suffer greater hardship if the property were divided in kind, while Fran would face greater hardship if the property were sold. The court also considered the impracticality of dividing the property in kind, the lack of financial ability among the co-owners to purchase each other's shares, and the fact that consensual alternatives to the orders sought had not been achievable. Ultimately, the court found that the hardship to Fran and Brian if the property was divided in kind outweighed the hardship to Dawn if the property was sold.

The court ordered the sale of the property under the supervision of the Registrar, with the proceeds to be divided among the co-owners in accordance with their shares. The outgoings on the property were allocated to Brian for the period of his occupancy after Lucy's death. The court also reserved leave to Fran to apply for any necessary consequential orders and fixed the costs of the proceeding at 2B scale, to be paid proportionately by Brian and Dawn out of their respective net shares of the sale proceeds.

Orders