Taufa v Makapa - [2014] NZHC 2363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003602 [2014] NZHC 2363

UNDER the Property Law Act 2007

IN THE MATTER

Section 339 Property Law Act 2007

BETWEEN

JOSEPHINE TAUFA

Plaintiff

AND

PETER MAKAPA First Defendant

Continued…

Hearing: On the papers

Counsel:

P N Teei for Plaintiff
Second Defendant in person (and also appearing on behalf of

First, Third and Fourth defendants). PA Fuscic for Fifth Defendant

Judgment:

26 September 2014

JUDGMENT OF KATZ J (Costs)

This judgment was delivered by me on 26 September 2014 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Teei & Associates, Henderson Presland & Co, Auckland McVeagh Fleming, Auckland

TAUFA v MAKAPA [2014] NZHC 2363 [26 September 2014]

TOMMY MAKAPA Second Defendant ISATINA MAKAPA Third Defendant SANTEALE MAKAPA Fourth Defendant
ANGELA NAOMI MAKIRU as Administrator of the estate of GEOFFREY TUINIUE MAKAPA

Fifth Defendant

Introduction

[1] Salemisa Makapa died on 19 December 2006. He left his entire estate, which mainly comprised his home in Kingsland, Auckland, to his six children equally.

[2] As Salemisa Makapa had not named an executor in his will, his six children agreed to the appointment of his daughter Josephine Taufa (née Makapa) as the administrator of the estate. Ms Taufa and her daughter moved into the Kingsland property, with the consent of her five siblings. Another sibling, Peter Makapa, also moved into the property. Both agreed to pay rent of $100 per week to the estate. From the estate account payments were made for land rates, insurance, maintenance and other outgoings.

[3] A dispute arose between the parties as to whether the property should be sold and, if so, on what terms. The parties were unable to resolve their differences and, as a result, Ms Taufa filed proceedings, seeking orders under s 339 of the Property Law Act 2007 for either the sale of the property to a third party or, in the alternative, that the siblings who wished to retain ownership of the property buy out Ms Taufa’s share.

[4] The first four defendants were Ms Taufa’s siblings Peter Makapa, Tommy Makapa, Isatina Makapa and Santeale Makapa. The fifth defendant, Angela Makiru, is the executor of the estate of the fifth sibling, Geoffery Makapa, who is now deceased. Ms Makiru counterclaimed against Ms Taufa, seeking orders, in effect, that Ms Taufa pay the outstanding rent she owed to the estate and also reimburse the estate for any funds that she had wrongfully taken and used for personal purposes.

[5] By the time of the hearing there was considerable common ground between the parties. It was agreed that the first to fourth defendants should be given an opportunity to purchase the interests of the plaintiff and fifth defendant in the property, albeit a valuation had not yet been agreed. Ms Taufa accepted that she owed some money to the estate, but the relevant sum had not yet been properly

quantified (it was largely quantified as a result of analysis undertaken during the course…

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 Taufa v Makapa

Details

AGLC: Taufa v Makapa [2014] NZHC 2363
Case: [2014] NZHC 2363
Decision Date: 26 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Josephine Taufa filed proceedings against several of her siblings, including Peter Makapa, seeking orders under section 339 of the Property Law Act 2007 for either the sale of the family home in Kingsland, Auckland, or for her siblings to buy out her share. The siblings, including Peter Makapa, Tommy Makapa, Isatina Makapa, and Santeale Makapa, as well as Angela Naomi Makiru as the administrator of the estate of Geoffrey Tuiniue Makapa, the deceased brother, counterclaimed against Taufa for outstanding rent and reimbursement of funds taken without authority. The primary legal issue was the valuation of the property for the purpose of a buy-out and quantifying the sums owed by Taufa to the estate.

The court, after considering the evidence and submissions, ruled that the siblings were entitled to purchase the house for $650,000 and ordered Taufa to account for and reimburse the estate $27,742.86 plus interest. The court noted that while all parties achieved their primary objectives, the case was unnecessarily protracted due to a lack of proper financial records and mutual distrust. Regarding costs, the court determined that as neither side fully succeeded on the valuation issue, costs should lie where they fell between Taufa and the siblings. As for the counterclaim by Makiru against Taufa, the court found that while Taufa's pre-trial settlement offer exceeded the court's award, justice would not be served by awarding costs against Taufa due to inadequate information provided to Makiru. Consequently, the costs of the counterclaim also lay where they fell. The court similarly ruled that the costs of the cross-claim by Makiru against the siblings should lie where they fell as it did not significantly impact the proceedings.

The final orders were that costs were to lie where they fell among the parties.

Orders