Swanson v Norris - [2023] NZHC 1666

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-463-000031

[2023] NZHC 1666

UNDER Sections 339 and 343 of the Property Law Act 2007

IN THE MATTER

of an Application for Division of Property Among Co-Owners

BETWEEN

WALTER EARNEST SWANSON

Plaintiff

AND

AMANDA EILEEN NORRIS

Defendant

ANZ BANK NEW ZEALAND LIMITED

Interested Party

CHRYSTAL NAPIA SWANSON, SAPHYRE NAPIA SWANSON and JAYDE SHAKHAN HEEMI THOMAS

Interested Party

Hearing: On the papers

Counsel:

P A Kirk for Plaintiff

Judgment:

30 June 2023

JUDGMENT OF HARVEY J

This judgment is delivered by me on 30 June 2023 at 2 pm pursuant to r 11.5 of the High Court Rules.

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

Solicitors:
O’Sullivan Clemens Lawyers, Rotorua

SWANSON v NORRIS [2023] NZHC 1666 [30 June 2023]

Introduction

[1] By will dated 16 February 2020, Tewiremu Napia Swanson appointed his brother, Walter Swanson, solicitor of Rotorua as his sole executor and trustee. Since the death of the deceased, Mr Swanson has been attempting to finalise the estate, including the selling of 58 Taharangi Street, Koutu, Rotorua. That process has been complicated, Mr Swanson says, by the difficulties between himself and the deceased’s ex-wife, the defendant, Amanda Norris. Ms Norris owned a half-share in the property. In short, Mr Swanson says that Ms Norris has failed to co-operate to finalise the estate by moving back to the property, refusing to properly engage in the orderly preparation of the property for sale and refusing to accept responsibility for the payment of liabilities and a splitting of the proceeds. Instead, Mr Swanson says Ms Norris has been obstructive and has damaged the property which has required him to outlay significant sums in having the property repaired and prepared for sale.

[2] On 7 December 2021, following a formal proof hearing Harland J authorised Mr Swanson to proceed with the sale and made orders enabling him to do so without Ms Norris’ involvement.1 The Judge also granted a series of in-principle deductions from Ms Norris’ share of the proceeds. However, the quantum of these deductions was to be established by affidavit and fixed by further order of the Court. Mr Swanson now seeks those further orders for reimbursement of costs incurred from Ms Norris’ share of the net proceeds.

[3] The issue for determination is whether the plaintiff has sufficiently established the quantum of the reimbursement claimed against Ms Norris regarding:

(a)the cost of repair and/or any devaluation in the property due to Ms Norris’ negligence or neglect;

(b)any utilities charges related to the property during Ms Norris’ occupation;

(c)fair occupational rent; and

1 Swanson v Norris [2021] NZHC 3342.

(d)any other compensation and/or reimbursement claimed which is not expressly covered by Harland J’s orders.

[4] For completeness, I note from the outset that as Ms Norris has not engaged in the proceedings thus far, only Mr Swanson’s side of the argument has been articulated.

Background

[5] Ms Norris and the deceased were married but separated…

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 Swanson v Norris

Details

AGLC: Swanson v Norris [2023] NZHC 1666
Case: [2023] NZHC 1666
Decision Date: 30 June 2023

CaseChat Overview and Summary

The case of Swanson v Norris involved an application for the division of property between co-owners under the Property Law Act 2007. Walter Swanson, the executor and trustee of the estate of Tewiremu Napia Swanson, sought orders to finalize the estate, including the sale of 58 Taharangi Street, Koutu, Rotorua. Swanson's application was complicated by difficulties with Amanda Norris, the deceased's ex-wife and co-owner of the property. Swanson claimed that Norris had been uncooperative, causing delays and additional costs.

The legal issues before the court were whether Swanson had sufficiently established the quantum of reimbursements claimed against Norris. These included costs for repairs and devaluation of the property, utility charges, fair occupational rent, and other compensation not covered by previous orders. The court had to determine if Swanson's claims were supported by the evidence and whether further information was required.

The court found that while Swanson's claims for reimbursement of personal costs, rates, mortgage penalties, and utilities were substantiated, other claims required further evidence. Swanson's claim for devaluation of the property and occupational rent was not sufficiently supported by the evidence provided. The court ordered Swanson to file a supplementary affidavit with additional information to support these claims. Costs were awarded on a 2B basis, along with disbursements.

The final orders included an initial reimbursement of $5,040.97 to Swanson for personal costs, with the remaining net proceeds to be divided equally between Swanson and Norris, subject to further adjustments. Distribution to Norris could be delayed pending the supplementary affidavit and any further orders made by the court.

Orders