Taufa v Makapa - [2014] NZHC 1820

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3602 [2014] NZHC 1820

UNDER Property Law Act 2007

IN THE MATTER

Section 339 Property Law Act 2007

BETWEEN

JOSEPHINE TAUFA

Plaintiff

AND

PETER MAKAPA First Defendant

Continued…

Hearing: 21July 2014 (final submission received 25 July 2014)

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:

4 August 2014

JUDGMENT OF KATZ J

This judgment was delivered by me on 4 August 2014 at 2:30 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 & Ors [2014] NZHC 1820 [4 August 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. His will was very straightforward. He left his entire estate to his six children equally. His main asset was his home at 28 First Avenue, Kingsland, Auckland.

[2] Unfortunately, however, Salemisa Makapa did not name an executor in his will. It was therefore necessary for application to be made to the High Court for letters of administration, with will annexed. The other five siblings agreed to their sister, Josephine Taufa (née Makapa) being appointed as administrator of the estate.

[3] Soon after her father died, Ms Taufa and her daughter moved into the First Avenue property, with the consent of the other 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.

[4] 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 these proceedings, seeking orders under s 339 of the Property
Law Act 2007:

(a) for the sale of the property and the division of the proceeds among the co-owners of the property; or

(b)

requiring one or more of the co-owners to purchase Ms Taufa’s share in the property at a fair and reasonable price.

[5]

The

first four defendants are 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 has counterclaimed against Ms Taufa, seeking orders, in effect, Ms Taufa, pay outstanding rent she owes to the estate and reimburse the estate in respect of any estate funds she has spent for personal purposes.

[6] By the conclusion of the hearing it was more or less common ground that Ms Taufa and Ms Makiru1 were entitled to receive their share of the estate in cash. Further, there…

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 1820
Case: [2014] NZHC 1820
Decision Date: 4 August 2014

CaseChat Overview and Summary

Josephine Makapa, the plaintiff, filed proceedings in the High Court of New Zealand seeking orders for the sale of a property at 28 First Avenue, Kingsland, Auckland, and the division of the proceeds among the co-owners. This was pursuant to section 339 of the Property Law Act 2007. The first to fourth defendants, Josephine's siblings, counterclaimed seeking orders that Josephine pay outstanding rent and reimburse the estate for any estate funds she had spent for personal purposes. The central legal issues were determining a fair and reasonable price for the property, assessing any adjustments needed to account for money Josephine owed the estate, and whether any adjustments should be made to reflect money owing by other siblings to the estate. The court found that a fair and reasonable price for the property was $650,000 based on the 2013 valuation. Josephine owed the estate $27,742.86, comprising a rent shortfall and repayments of "loans" of estate funds used for personal expenses, with interest. Compound interest was appropriate for the "loans" to account for lost interest that could have been added to the estate's capital. No adjustments were made for money owing by other siblings as the evidence was insufficient. The court ordered that the property be sold at auction if the siblings could not arrange finance by a specified date. The final orders included details of the amounts Josephine owed, reimbursement of valuation costs, and the process for paying out and dividing the estate's proceeds. The issue of costs was reserved pending agreement between the parties.

Orders