Swanson v Norris - [2021] NZHC 3342

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2020-463-31

[2021] NZHC 3342

UNDER Section 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 NAPIER SWANSON, SAPHYRE NAPIA SWANSON and JAYDE SHEKAHN

Interested Party

Hearing: 3 December 2021

Appearances:

P Kirk for plaintiff

Judgment:

7 December 2021

JUDGMENT OF HARLAND J

[Formal Proof]

This judgment was delivered by me on 7 December 2021 at 4.45 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ………………………………..

Counsel/Solicitors:
P Kirk, O’Sullivan Clement Lawyers, Rotorua

SWANSON v NORRIS [2021] NZHC 3342 [7 December 2021]

Introduction

[1] Mr Walter Swanson, a solicitor in Rotorua, applies as the executor of the estate of his deceased brother Mr Tewiremu Napia Swanson for an order pursuant to ss 339 and 343 of the Property Law Act 2007 (the Act) to sell a property at 58 Taharangi Street, Rotorua (Record of Title CT SA 15B/1238) (the property), in respect of which he and Ms Amanda Norris, Mr Tewiremu Swanson’s former wife, are the registered proprietors. Orders related to the sale are also sought.

[2] The interested parties are the mortgagee, ANZ Bank of New Zealand Limited (ANZ) and the three children of Mr Tewiremu Swanson. The three children are the beneficiaries of Mr Tewiremu Swanson’s estate. They are not Ms Norris’ children.

[3] I will refer Mr Walter Swanson and Mr Tewiremu Swanson as to the “plaintiff” and “deceased” in this judgment appreciating that it is rather impersonal and formal. I intend no disrespect in doing so, I do it simply to avoid confusion. To be consistent I will also refer to Ms Norris as “the defendant”.

[4] Neither the defendant nor any of the interested parties have taken any steps in the proceedings despite having been served with them.1 This matter has therefore proceeded before me by way of formal proof.

[5] In support of his application, the plaintiff filed an affidavit dated 3 August 2021. The plaintiff confirmed his evidence in Court before me and answered additional questions to clarify my understanding of the matters he had referred to in his affidavit.

[6] I am satisfied from hearing the plaintiff that he has tried very hard to engage with the defendant but, for whatever reason, she has chosen to ignore his attempts to deal with matters without the Court’s involvement.

1 Affidavit of service of Aimee Alice Amelia Rendall sworn 19 May 2021; Affidavit of service of Cecilia Dawn Tutua sworn 28 May 2201; Affidavit of service of Cecilia Dawn Tutua sworn 18 June 2021.

[7] I am satisfied that orders are needed to progress the resolution of the estate because the estate has no funds and the expenses in relation to the property continue to accrue.

The background to the application

[8]…

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 [2021] NZHC 3342
Case: [2021] NZHC 3342
Decision Date: 7 December 2021

CaseChat Overview and Summary

The case of Swanson v Norris involves an application by Walter Earnest Swanson, the executor of his deceased brother's estate, for an order to sell a property located at 58 Taharangi Street, Rotorua, and to divide the proceeds among the co-owners as per sections 339 and 343 of the Property Law Act 2007. The defendants are Amanda Eileen Norris, the deceased's former wife, and the interested parties are ANZ Bank New Zealand Limited and the three children of the deceased. The application was brought before the court due to the non-cooperation of the defendant and the accruing expenses of the property, which the estate could not cover. The court was required to decide whether the property should be sold and the proceeds divided, and if so, under what conditions and to what extent.

The court considered the relevant legal provisions and the specific circumstances of the case, including the nature of the property, the shares of the co-owners, the potential hardship caused by the refusal or granting of the order, and the contributions made by the co-owners to the property. The court also examined the orders sought by the plaintiff, which included vacating the property, setting a minimum sale price, determining the sales process, charging the defendant's share with repair costs, and dividing the sale proceeds. After evaluating the evidence and arguments presented, the court concluded that the property should be sold to resolve the estate's financial difficulties. The court ordered the sale of the property, with specific timelines for the defendant's vacating and the plaintiff's marketing of the property. It also allowed the plaintiff to fix a minimum sale price, select the real estate agent, and determine the sales process. The court reserved the right to address further costs and damages in subsequent proceedings.

In summary, the court granted the plaintiff's application to sell the property and divide the proceeds among the co-owners, with specific conditions and timelines. The court also reserved the right to address additional issues, such as repair costs and utility charges, in future proceedings. This decision ensures the efficient resolution of the estate and addresses the financial challenges faced by the plaintiff in managing the property.

Orders