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).
[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:
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- AGLC
- Sillick v Sillick [2018] NZHC 510
- Case
- [2018] NZHC 510
- Decision Date
CaseChat Overview and Summary
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
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
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