Sue v Sue
[2024] NZHC 3892
•18 December 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2022-454-32
[2024] NZHC 3892
BETWEEN PANATAHI SUE
Plaintiff
AND
TANYA JANE SUE
Defendant
Hearing: 3-4 November 2024 Appearances:
G Mason for Plaintiff M Leggat for Defendant
Judgment:
18 December 2024
JUDGMENT OF CHURCHMAN J
Introduction
[1] Mrs Panatahi Sue (the plaintiff) (Panatahi) has four children, including Ms Tanya Jane Sue (the defendant) (Tanya) and Mr Peter Sue Jnr. Panatahi and Tanya co-own the property at Lot 3, Taonui Road, Colyton (Lot 3) as tenants in common in equal shares.
[2] On 10 May 2022, Panatahi filed a statement of claim alleging she was suffering hardship by being denied access to the proceeds of her equity in Lot 3, due to Tanya’s refusal to agree to selling the property or purchasing Panatahi’s interest in the property.
[3]The plaintiff seeks:
(a)an order under s 339 of the Property Law Act 2007 (PLA) providing for the defendant to purchase the plaintiff’s share in Lot 3 at a fair and reasonable price, to be determined according to a mechanism to be
SUE v SUE [2024] NZHC 3892 [18 December 2024]
stipulated by the Court pursuant to s 343 of the PLA and, in the event this option is not exercised within the timeframe to be set by the Court;
(b)an order pursuant to s 339 of the PLA for Lot 3 to be sold for the best reasonably obtainable price using a mechanism to be set by the Court;
(c)for the proceeds of the sale to be divided between the parties making allowance for the use and occupation of Lot 3 by the defendant per s 343(f) of the PLA and such other matters as the Court considers necessary and desirable; and
(d)costs.
[4] Tanya opposes those orders. She alleges these proceedings are being driven by her brother Peter Sue Jnr who she claims has a malign influence over the plaintiff. She says Panatahi owes her significant sums, and makes a counter claim that:
(a)because the plaintiff received the whole proceeds of sale of Lot 2, but only held a half-share in that property, the defendant is beneficially entitled to the whole of Lot 3;
(b)if the Court finds the plaintiff is entitled beneficially to a one-half share of Lot 3, the plaintiff’s receipt and retention of both halves of the sale proceeds from the sale of Lot 2 unjustly enriched the plaintiff at the expense of the defendant; and
(c)if the Court finds the plaintiff is entitled beneficially to a one-half share of Lot 3, the plaintiff then holds beneficially for the defendant one-half of the proceeds of sale of Lot 2, and it would be unconscionable and unjust for the plaintiff to retain the entire sale proceeds of Lot 2 whilst also receiving any share of Lot 3.
[5] The defendant also initially pursued counter claims in respect of the property at 104A Atawhai Road (Atawhai Road), but has since made clear those claims have been discontinued.
[6]The defendant consequently seeks the following:
(a)If the first counterclaim is successful:
(i)a declaration that the defendant is entitled legally and beneficially to the whole of Lot 3 and that pending transfer of the half-share in Lot 3 currently registered in the name of the plaintiff, the plaintiff holds that half-share beneficially for the defendant; and
(ii)an order that the plaintiff transfer her half-share in Lot 3 to the defendant;
(b)if the second or third counterclaims are successful:
(i)judgment against the plaintiff for $55,501.98 (being one-half of the net sale proceeds of the property at Lot 2, Taonui Road, Colyton (Lot 2)) together with interest thereon from 30 April 2013; and
(ii)a set-off of the defendant’s entitlement to that judgment against any share of the proceeds of sale of Lot 3 otherwise due to the plaintiff;
(c)costs; and
(d)such further or other relief as the Court may seem just.
Background
[7] Many years before the events that resulted in this proceeding, Panatahi and her late husband, Mr Peter Sue Snr, owned a property at 45 Pencarrow Street, Palmerston North. That property was sold sometime between 2000 and 2005 (with each party providing different dates) for $265,000, with Panatahi and her husband receiving a net $185,000 from the sale.
[8] The net proceeds of $185,000 were used to invest in a property development at 104A Atawhai Road, Palmerston North with Tanya, with Tanya arranging for the construction of a house on the property, which Panatahi and her late husband lived in for a time.
[9] The parents then invested $181,000 into a property at 173 Valley Views Road, Palmerston North, which Tanya and her then partner had purchased in July 2004 and developed, building a family home for them to live in and a granny flat for her parents to live in.
[10]In November 2007, 104A Atawhai was sold for $417,500, with Tanya receiving
$75,000 and Panatahi receiving $246,482.12.
[11] In 2007, the parties purchased Lot 5 Deposited Plan 376750, on Taonui Road, Colyton for $130,000, with Panatahi contributing $75,000. The lot encompassed 1.3435 hectares of land.
[12] The property, together with a contiguous section of 1.0850 hectares purchased for $120,000 by Tanya, her partner John Rounce and a Mr Shaun Timmins (Lot 6), were subdivided into 5 sections. These sections were:
(a)Lot 1, amounting to 4002 m2, held by Mr Timmins and Tanya;
(b)Lot 2, amounting to 4564 m2, originally held by Panatahi and Tanya;
(c)Lot 3, amounting to 4210 m2, held by Panatahi and Tanya;
(d)Lot 4, amounting to 6554 m2, held by Tanya and Mr Rounce; and
(e)Lot 5, amounting to 4956 m2, held by Tanya, Mr Rounce and Mr Timmins.
[13] Lot 5 was sold in 2009, and it is not clear what the proceeds of sale were or how they were applied.
[14] Lot 2 sold for $112,000 on 15 April 2013, with the proceeds paid to Panatahi. Panatahi claims this was done with Tanya’s agreement, on the basis Panatahi would pay for the fencing work being completed at the property. Tanya claims this was done because the parties did not have a joint account into which the proceeds could have been deposited, and asserts that Panatahi never accounted to her for any share of the proceeds of sale.
[15]On 24 October 2014, the property at 173 Valley Views Road was sold for
$880,639.26, with $185,000 paid to Panatahi.
[16]In July 2018, Peter Sue Snr passed away.
[17] On 7 December 2019, Peter Sue Jnr sent an email to Tanya asking that Panatahi’s interests in Lot 3 be finalised, with a proposed resolution of payment to Panatahi of $60,000. Tanya rejected this proposal.
[18] On 17 September 2020, the joint tenancy of Lot 3 was severed leaving the parties as tenants in common in equal shares.
[19] On 16 June 2021, Terrence End Law wrote to Tanya on behalf of Panatahi seeking the property be placed on the market or for Tanya to purchase Panatahi’s share at market value. Tanya did not respond to this request, nor another communication sent on 25 November 2021 seeking her commitment to sale and suggesting she take legal advice.
The Law
[20]Section 339 of the PLA provides that:
(1)A court may make, in respect of property owned by co-owners, an order—
(a) for the sale of the property and the division of the proceeds among the co-owners; or
(b) for division of the property in kind among the co-owners; or
(c) requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.
(2)An order under subsection (1) (and any related order under subsection (4)) may be made—
(a) despite anything to the contrary in the Land Transfer Act 2017; but
(b) only if it does not contravene section 340(1); and
(c) only on an application made and served in the manner required by or under section 341; and
(d) only after having regard to the matters specified in section 342.
(3)Before determining whether to make an order under this section, the court may order the property to be valued and may direct how the cost of the valuation is to be borne.
(4)A court making an order under subsection (1) may, in addition, make a further order specified in section 343.
(5)Unless the court orders otherwise, every co-owner of the property (whether a party to the proceeding or not) is bound by an order under subsection (1) (and by any related order under subsection (4)).
(6)An order under subsection (1)(b) (and any related order under subsection (4) may be registered as an instrument under—
(a) the Land Transfer Act 2017; or
(b) the Deeds Registration Act 1908; or
(c) the Crown Minerals Act 1991.
[21]Section 342 of the PLA further provides that:
A court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:
(a) the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:
(b) the nature and location of the property:
(c) the number of other co-owners and the extent of their shares:
(d) the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:
(e) the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:
(f) any other matters the court considers relevant.
[22] Section 343(f) of the PLA provides that a further order referred to in s 339(4) is an order made in addition to an order under s 339(1) and includes one that requires the payment by any person of a fair occupation rent for all or any part of the property.
[23] In Bayly v Hicks, the Court of Appeal found the above provisions set out a “new broad discretionary regime” under which “it is appropriate for a judge to stand back…and consider what, on an overview, taking into account the relevant considerations, is the most just and practical way through the impasse before the court”.1
Evidence
Defendant’s brief of evidence
[24] Tanya’s evidence is that upon the sale of 104A Atawhai Road, her parents received the full benefit of the sale proceeds. She states she was paid $75,000 from the sale proceeds, of which $65,000 was Panatahi’s half-share of the purchase price of Lot 5 in Colyton, and the other $10,000 was potentially for repayment of credit card debt, although Tanya says she is “uncertain”. She says that, in combination with the
$246,482 net sale proceeds paid to Panatahi, the $185,000 that had been contributed to the Atawhai Road development turned into $321,000 in less than three years.
[25] She deposes that the development of the two Colyton lots was undertaken between 2007 and 2011, and that all the services for managing the subdivision were provided by or arranged by Mr Timmins and herself. She says the total costs of the subdivision over the years is approximately $100,000, and that these costs had been ongoing for the past 15 years with regular maintenance required, more drainage installed and power upgrades.
[26] Tanya says that although her parents initially wanted to build a house on one of the two lots that she and Panatahi co-owned, due to Peter Sue Jnr’s influence they changed their mind and wanted to cash out of Valley Views and sell their interest in the land at Colyton. She deposes that while she was based in Christchurch working
1 Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [32].
on projects following the 2011 earthquake, she worked hard to find a purchaser for Lot 2. She says once Lot 2 was sold, the proceeds were paid into Panatahi’s account as they did not have a joint bank account and her parents had greater need for the money.
[27] With respect to the sale of Valley Views, Tanya deposes that she and her parents entered into an agreement in 2010 for them to repay loans they had from Westpac which were secured under her and her then-partner John Rounce’s mortgage. She says the agreement provided for them to be paid $181,275 less the amount they owed. She says when the time came to pay out the proceeds of the sale, they were just paid the full $185,000 without deduction for their loans.
[28] Tanya further says whilst, prior to the sale of Lot 2, Panatahi and her shared the rates for the two lots, after Lot 2 was sold, Tanya alone paid the rates. She claims this was to be expected because “Lot 3 was rightly solely mine”. She says from the time Lot 2 was sold, her mother was never asked to contribute to the rates or any other outgoings for Lot 3 such as paddock maintenance and the cost of removing rubbish dumped on the land by her brother Peter. She says Panatahi also did not offer to pay any such expenses.
[29] Tanya asserts that Panatahi never asked to get her money out of Lot 3 as she knew she and her father had received the entire proceeds of one of the two jointly owned properties. She says it was only after her father’s death that, under Peter’s influence, she brought the claim for half of Lot 3 as well.
Plaintiff ’s brief of evidence
[30] In her evidence, Panatahi deposes that she is unsure of how much money she put into the purchase of the Colyton Lot, but says perhaps it was the sum claimed by Tanya. She also states she is unsure the amount she paid for the subdivision costs. She states she has seen the schedule where Tanya says her share is a quarter of the costs totalling $10,865.02, and notes that in one of the documents comprising the Bundle of Documents Tanya has written that Panatahi has paid $8,000.
[31] Panatahi claims that when the Colyton sections were subdivided Tanya explained how this would be divided so that Panatahi got one and a half sections. She says it was her understanding that she would have one and a half sections. She says Tanya told her Lot 2 was hers and her late husband Peter’s, and that when the Lot sold, Tanya kept her word and told the solicitor that the full proceeds were to be paid to her.
[32] Panatahi says her understanding was, after the sale of Lot 2, Lot 3 was still half hers, and that Tanya told her that she should not worry about the rates for Lot 3. She says she thought that was all right as the rates were not much and she was not getting anything out of the property.
[33] Panatahi also says she does not accept that she owes money to Tanya for any of the deals that Tanya put together in the past over Atawhai Road or Valley Views. She says Tanya never mentioned that she was owed anything before she told Tanya that she wanted to get her money out of Lot 3.
[34] In her evidence in reply, Panatahi deposes that she and her husband assisted in the construction of the house at Valley Views, with Peter Sue Snr purchasing a tractor and doing work on the yard, driveway and grounds with it. She also says she doesn’t know if Tanya is correct that they received the full benefit of the sale proceeds of Atawhai Road, but does not accept that $10,000 of her contribution was paid to Tanya in reimbursement of credit card payments made on her behalf.
[35] Panatahi says in respect of the Colyton subdivision, Tanya did ask them to provide more funding. She also says she has never seen any spreadsheet which shows the subdivision costs of approximately $100,000 that Tanya claims. Panatahi also acknowledges that neither she nor her husband were involved in the Colyton subdivision or the allocation of titles, and that they simply went along with what Tanya proposed.
[36] Panatahi says she does not accept that not having a joint bank account was a factor in the proceeds of Lot 2 being paid to her, and states that all along it had been agreed that she would have one and a half sections, so that after selling that section and receiving the sale proceeds she and her husband had half a section left.
[37] She does not accept that her investment in Colyton was $65,000, saying it was more. She also does not recall anything about having loans outstanding when Valley Views was sold. She says she is not certain but thinks the loans were repaid from the sale proceeds of Lot 2.
Submissions
Plaintiff ’s submissions
[38] Mr Mason, counsel for the plaintiff, submits that the relevant factors in terms of s 342 include that:
(a)the parties each have an undivided half-share in the property;
(b)the property is a residential section in the countryside;
(c)there would be some hardship to the plaintiff in her interest remaining in the property given she is elderly (aged 80) with no income other than superannuation and ‘no great resources otherwise’;
(d)it is not clear any contribution of value has been made by either co-owner; and
(e)that there is extreme disharmony between the family members.
[39] Mr Mason asserts that the plaintiff met her full share of the subdivision costs, and that there is nothing to suggest there was any issue historically about the plaintiff allegedly not having paid her share of the development costs. He refers to correspondence from the defendant to her parents and partner where the costs of subdivision were discussed, and to the fact that, at the time of the sale of Lot 2, the defendant stipulated the plaintiff was to pay the fencing costs.
[40] He submits that given the plaintiff paid for half the initial cost of Lot 5, she was entitled to half the value of 1.3435 hectares, and received slightly under that in the combined size of Lot 2 and half of Lot 3, being 6,669 m2. Mr Mason makes reference to various items of correspondence which he says supports the notion the
plaintiff was always the owner of one and a half of the five subdivided sections, meaning the sale of Lot 2 and the half share she had in Lot 3 reflected her beneficial ownership.
[41] Mr Mason submits this is a clear case where the title to Lot 3 reflects the equitable ownership, noting the plaintiff is an elderly widow getting no benefit from the property she paid half of the cost for, while the defendant is renting out the property to a local farmer with her house being next to it. He states that the parties’ attempts at settlement have been unsuccessful and there is no prospect of resolution except through the Court.
[42] With respect to the defendant’s counterclaims, Mr Mason submits that the defendant can have no reasonable expectation to be the sole equitable owner of Lot 3, and that claims in respect of Lot 2 and Lot 5 are subject to limitation defences, given they occurred over six years prior to those matters first being pleaded in the statement of defence and counterclaim filed 7 July 2022.
Defendant’s submissions
[43] Mr Leggat, counsel for the defendant, submits that the plaintiff claims to be entitled to one and a half of the four remaining lots, despite the fact that:
(a)having made a contribution equivalent to that of the defendant for the purchase of the old Lot 7 in 2007 ($65,000);
(b)having made no contribution to the development of the subdivision whereas the defendant organised, managed and arranged necessary funding for the subdivision;
(c)having already received a very good return on her $65,000 investment being $111,003.97 in less than five and a half years;
(d)the origin of the $65,000 itself being out of the proceeds of sale of 104A Atawhai Road in November 2007 of which she had been allowed the entire benefit of another jointly-owned property;
(e)her claim also involving seeking a half-share of the capital gain, despite having made no contribution to the outgoings and maintenance of the land since 2013; and
(f)neither the plaintiff nor her late husband having made claim to the half-share in Lot 3 until December 2019, more than six and a half years after she cashed out of Colyton.
[44]Mr Leggat submits that, of the s 342 factors, the most pertinent in this case are:
(a)the status, location and ownership of the land is known and not complex;
(b)hardship for the defendant if forced to part with or purchase land, depriving her of a significant part of her interest in the land that is Lot 3, resulting from the subdivision of Lots 5 and 6, to which she has contributed half the purchase price, organised and managed the improvements to the land since 2007, and had no reason to consider she would be forced to give up; and
(c)value of contribution by the defendant to the costs of the improvements and maintenance of Lot 3 is the most important consideration.
[45] With respect to the defendant’s counterclaims, Mr Leggat makes clear that it is only if the Court finds the plaintiff does have an equitable/beneficial interest in Lot 3 (and thus that the first counterclaim fails) that the Court need consider the second and third counterclaims. Counsel submits the plaintiff cannot have it both ways, namely all of one of the two lots plus half the second lot. He notes the defendant received no notice of the claim being staked to Lot 3 until December 2019, and no prior notice of the severance of the joint-tenancy into tenancy in common in 2020.
[46] Mr Leggat submits that were the plaintiff to be awarded half of Lot 3, she would be unjustly enriched to the detriment of the defendant, insofar as she retains the benefits of all of Lot 2 as she has done since April 2013.
[47] In relation to the limitation defences raised by the plaintiff, Mr Leggat submits that the defendant made no demand for the half-share of the Lot 2 sale proceeds until her defence in this proceeding around 7 July 2022, and she had no reason to think that she may be deprived of a half-share of one of the two jointly-owned lots until receiving the emails from her brother in December 2019. He consequently argues the defendant’s claim to the sale proceeds of Lot 2 has a late knowledge date of not before 7 December 2019 by reason of s 14(1)(c) and (e) of the Limitation Act 2010.
Discussion
[48] The question in this case is whether the plaintiff, who clearly holds a legal interest in Lot 3, also has an equitable interest in Lot 3 despite being paid the whole of the proceeds from the sale of Lot 3, due to an agreement between the parties.
[49] There is significant evidence supporting the existence of an agreement between Panatahi and Tanya. In a letter to Peter Sue dated 24 May 2010, Tanya noted that Panatahi had invested $67,000 in the property and that her equity was sitting at
$183,000. Given Lot 2 sold for $112,000 and had a rating value of $123,000 at that time—as noted in the rates assessment tax invoice dated 16 August 2010—this reference supports the notion that as at May 2010 Tanya considered that Panatahi was entitled to one and a half lots.
[50] Additionally, in an email dated 12 April 2013, noting that the Lot 2 sale occurred on 15 April 2013, Tanya wrote to her then partner Mr Rounce that she had ‘signed the agreement for mums land’ and that after paying for fees and discharging the mortgage that ‘will leave parents with…$67K’. She goes on to say:
It will also mean, some more progress at those plots of land…..so 2 lovely new homes surrounding our other 2 section and mum and shauns half??
[51] This again supports the premise that, despite the fact Panatahi had received the entirety of the net proceeds of Lot 2, Tanya still considered that Panatahi had a half-share in one of the other lots. This understanding is further supported by her comments in the email to Mr Rounce on 23 April 2013, in which Tanya says “and mum still owns $60K half of the other section at colyton”.
[52] Additionally, in cross-examination, Tanya conceded that the handwriting on the draft plan dated December 2007 was hers. The handwritten notes included the following:
Then sub-divided 2 into 5 lots…so 2 → 5 means I get 2 ½ lots and shaun + yourself should get other 2 ½ lots. BUT shaun only given 1 lot + you 1 ½.
[53] This evidence does not accord with the defendant’s narrative that Panatahi received the whole of the proceeds from Lot 2 not because she was entitled to it, but because she was holding half of those proceeds on trust for Tanya because there was no joint bank account it could be paid into. I reject that assertion, and consider the agreement for Panatahi to receive one and a half lots is made out on the balance of probabilities, with the plaintiff’s contentions being confirmed by Tanya’s express acknowledgements in the documentation referred to above.
[54] I do not consider the origin of Panatahi’s investment in the Colyton development, namely from the proceeds of the sale of 104A Atawhai Road, has any bearing on this matter. There is no evidence that Tanya laid claim to more than what she had received from the proceeds of the sale of the Atawhai property, and I consider it is more likely than not that a similar arrangement as occurred with Lot 2 occurred in respect of 104A Atawhai Road, namely that although there was joint legal ownership of the property between the parties, it was treated as being solely Panatahi’s property.
[55] In respect of contributions to the development of the land, I accept the submissions of Mr Mason that the exact costs of subdividing the two lots into five is unclear, but appears to be in the range of $43,982 to $64,000, with no evidence to support the defendant’s contention that it was $100,000. Although Panatahi acknowledges that Tanya was solely responsible for the organisation and management of development, I consider it has been established that Panatahi did contribute to the costs of the subdivision, as this is clear from Tanya’s handwritten notes on the schedule setting out the subdivision costs and investments, where she notes her belief that Panatahi had paid $8,000 of the $10,708.75 owed for subdivision costs.
[56] With regard to the contributions to the outgoings and maintenance of the Colyton lots, it is common ground between the parties that both were contributing to the rates and other outgoings prior to the land being subdivided. I accept that after the sale of Lot 2, Tanya became solely responsible for paying the rates for Lot 3.
[57] However, it is also clear that Tanya had successfully applied for and received rates remissions for Lot 3, given it came under Manawatu District Council’s ‘remission for properties farmed as one’ policy, under which rate payers could apply for rates relief for non-contiguous rating units that are farmed as a single farming operation. This had substantially reduced the rates to $136.89 per annum, as indicated by rates tax invoices from the 2017/2018 financial year. Furthermore, there was an arrangement, whether informal or formalised as a lease, where Mr Brian Worboys grazed his sheep on Lot 3. Although Tanya denies she received any income from this arrangement, at the very least she received the benefit of having the grass kept low by the livestock, which would have mitigated the fire risk mentioned in her statement of defence.
[58] In light of the above, I do not consider that Tanya’s taking responsibility for the outgoings and maintenance of Lot 3 means she has equitable ownership of Panatahi’s share in Lot 3. This was an arrangement agreed between the parties, and Tanya had sole benefit of use of the Lot, with the outgoings relatively modest given the rates remission Tanya successfully applied for.
Should an order be made?
[59] Having determined these evidential matters, I now turn to whether an order under s 339 should be made. In terms of the factors under s 343, I consider there would be hardship to Panatahi to refuse to make the order sought, given her age and limited life expectancy. Resolving the issue of ownership may well go some way to easing the intra-family discord that is clearly a source of considerable distress for both parties and wider family members. I do not consider there is equivalent hardship to Tanya if an order was made, and I note that there is no suggestion she is in a difficult financial position. I accept that Tanya made contributions to the improvement or
maintenance of the property, but I do not consider these to have been particularly substantial, as the property remains a bare section.
[60] Given both parties each legally own a half-share in the property, and their relationship can be described as acrimonious, it is difficult to see how any decisions regarding the property could be made without judicial intervention. On the evidence, I am not satisfied that Tanya has an equitable claim over Panatahi’s share of Lot 3 that would render an order under s 339 unjust. It is clear to me the most just and practical way through the impasse between the parties is to make the orders sought.
[61] I reject Tanya’s counterclaims. For the reasons set out above I am not satisfied that Tanya has any beneficial or equitable entitlement to the whole of Lot 3, nor that Panatahi has been unjustly enriched at the expense of Tanya. Panatahi’s retention of the whole of the proceeds from the sale of Lot 2 was clearly part of an oral agreement between the parties, and did not disentitle her from the proceeds of sale from her share of Lot 3. For the same reasons, it would be unconscionable or unjust to Panatahi for Tanya to retain the entire sale proceeds Lot 3.
Valuation
[62] The most recent valuation of Lot 3, dated 1 October 2023, valued the property at $330,000. For ease and expediency of resolving the dispute between the parties, I consider this valuation to be sufficiently representative, unless the parties come to an agreement that a new valuation should be commissioned to provide a more up to date assessment of market value.
Orders
[63] Under s 339(1) of the PLA, I order that the plaintiff’s half share in Lot 3 DP 421487, Taonui Road, Colyton be purchased by the defendant on the basis of the valuation by Firth Valuation Ltd dated 1 October 2023, or alternatively on the basis of a new independent valuation to be commissioned by the Court if the parties so agree within 30 days of the date of this judgment.
[64] If the parties opt to commission a new valuation, the costs of that valuation and any other costs of sale will be shared by the parties in equal shares.
[65] If the defendant does not wish to buy the plaintiff’s half share, the property is to be sold and the net sale proceeds divided equally. I reserve leave for either party to come back to the Court if directions as to the manner of sale are required.
Costs
[66] In the event the plaintiff seeks costs against the defendant, memoranda are to be filed and served by the plaintiff within 20 days of the issuing of this judgment, and by the defendant within five working days of the filing and service of the plaintiff’s memorandum on costs.
Churchman J
Solicitors:
Terrace End Law, Palmerston North for Plaintiff Michael Leggat, Wellington for Defendant
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