Styler v James - [2020] NZHC 713

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-313

[2020] NZHC 713

UNDER the Property Law Act 2007

IN THE MATTER

of an application for an order for the division of property

BETWEEN

ANTHONY FREDERICK STYLER

Plaintiff

AND

SUSAN ELIZABETH JAMES

Defendant

Counsel: W H McMenamin for Plaintiff

Judgment:

7 April 2020

(Determined on the papers)

JUDGMENT OF OSBORNE J

[application for formal proof]

This judgment was delivered by me on 7 April 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

STYLER v JAMES [2020] NZHC 713 [7 April 2020]

[1] These proceedings were served on 19 October 2019. The time for filing a statement of defence expired 22 November 2019. The defendant has taken no steps.

[2] Counsel for the plaintiff has filed affidavits in support of the formal proof and it is appropriate that the matter proceed as a formal proof in the absence of a statement of defence.

Context

[3] The plaintiff was married to Ms Styler for some 20 years. They lived at 8 Opal Place, Christchurch, (“the property”) which is the subject of this proceeding. Ms Styler died before 19 November 2008. This is clear because on 19 November 2008 the plaintiff, the defendant and the defendant’s brother, Barry John Deanes, entered into a Property Sharing Deed dated 19 November 2008 (“the Deed”), recording their rights in the property in Ms Styler’s Estate. The defendant and Mr Deanes are the children of Ms Styler and the step-children of the plaintiff.

[4] Under the Deed the parties were to be registered as tenants in common of the property in the following shares:

(a)the plaintiff as to a 50 per cent share;

(b)Mr Deanes as to a 20 per cent share; and

(c)the defendant as to a 30 per cent share.

[5] The Deed conferred on the plaintiff a personal right of occupation which could not be enjoyed by any other person alone or in conjunction with the plaintiff.

[6] In consideration of that life interest the plaintiff was to pay rates, replacement house insurance, electricity, telephone and general upkeep, repairs and defined maintenance.

[7] The Deed stated what was to occur if the plaintiff decided to no longer occupy the property. The plaintiff was to give notice to his step children that he intended to

terminate his right of occupation. That triggered an option for the defendant and Mr Deanes to purchase the plaintiff’s interest. If that right was not exercised, then the plaintiff had the option to purchase the interests of the defendant and Mr Deanes.

[8]Clause 12 of the Deed provided:

If no party exercises an option to purchase or all parties waive their respective options to purchase then the property shall immediately be placed on the market for sale at a price agreed upon by the parties or if agreement is not possible then using the valuation procedures provided for in clause 11 hereof and the net…

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 Styler v James

Details

AGLC: Styler v James [2020] NZHC 713
Case: [2020] NZHC 713
Decision Date: 7 April 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the plaintiff, Anthony Frederick Styler, filed an application for an order to divide property under the Property Law Act 2007 against the defendant, Susan Elizabeth James. The plaintiff and the deceased, Ms Styler, were married for approximately 20 years and resided at 8 Opal Place, Christchurch. The property is the subject of this proceeding. Ms Styler died before 19 November 2008, evidenced by a Property Sharing Deed signed by the plaintiff, the defendant, and the defendant's brother, Barry John Deanes, on that date. The deed outlines the respective shares of the property and the personal right of occupation held by the plaintiff, subject to certain conditions.

The court was required to determine whether an order should be made for the sale of the property and the division of the proceeds among the co-owners, as requested by the plaintiff. The court considered the relevant factors under section 342 of the Act, including the extent of the shares of the co-owners, the nature and location of the property, and the hardship that would be caused to the applicant by the refusal of the order, among others. The court also considered the terms of the Deed, which provided that if none of the parties wished to buy out the other, the property was to be sold.

The court found that the facts of the case warranted an order for the sale of the property. The plaintiff and Mr Deanes represented 70% of the ownership interests and supported the sale. The property was a house on a section of 640 square meters, and there was no suggestion from the defendant that the sale would cause her any hardship. The court also considered that the present situation, with the property vacant and creating costs to the parties, could not continue.

The court ordered that the property at 8 Opal Place, Christchurch, be sold and directed the plaintiff to file a draft order supported by an explanatory memorandum and affidavit evidence as to the factual matters to be considered in the supplementary orders. The court reserved costs.

Orders