Taylor v Conroy - [2024] NZHC 1467

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1361

[2024] NZHC 1467

UNDER Section 339 of the Property Law Act 2007 and Part 19 of the High Court Rules 2016

BETWEEN

CHRISTOPHER GEORGE TAYLOR AND MGH TAYLOR LIMITED AS TRUSTEES OF THE LE ROY TRUST

Applicants

AND

HELEN MIRIAM CONROY AND MGH CONROY LIMITED AS TRUSTEES OF THE HAWKRIDGE DOOLITTLE TRUST

Respondents

Hearing: 14 March 2024

Appearances:

W E Andrews for applicants A ME Parlane for respondents

Judgment:

5 June 2024

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 5 June 2024 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Pidgeon Judd, Auckland Parlane Law, Auckland

TAYLOR v CONROY [2024] NZHC 1467 [5 June 2024]

[1] Helen Conroy and Simon Taylor lived together from around 1992. They decided jointly to buy a property at Wilson Road, South Head (Property) in around 2006. Their solicitors assisted them to establish trusts, and the trustees of each trust to purchase the Property as tenants in common: the Conroy Trust taking a three-twentieths share, and the Taylor Trust taking a seventeen-twentieth share.

[2]Mr Taylor died in 2010. Ms Conroy continued to live at the Property.

[3] The Taylor trustees now seek an order under s 339(1) of the Property Law Act 2007, for the sale of the Property, and the division of the net proceeds between the trusts in proportion to their interests.

When should the Court make a sale order under s 339(1)?

[4] Section 339(1) provides the Court with a “broad discretion”,1 to order the sale of property owned by co-owners, and the division of the proceeds among the co-owners. Relevantly under s 339(2), an order under s 339(1) may be made:

(a)only on an application made and served in the manner required by or under s 341(2); and

(b)only after having regard to the matters specified in s 342.

Section 341(2) compliance

[5] Section 341(2) requires applications for s 339(1) orders to be served on all co- owners, all persons who have an estate or interest that may be affected by the application being granted, and all persons claiming to be a party to, or entitled to a benefit under, an instrument relating to the property, other than persons already a party to the proceeding, except where such service is changed or dispensed with by the court to which the application is made.

[6] In this case, the applicants — Mr Taylor’s brother, Christopher Taylor, and MGH Taylor Ltd — are co-owners of the Property, as trustees of what I have described

1 Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [25].

as the Taylor Trust. And Ms Conroy and MGH Conroy Ltd are similarly co-owners of the Property, as trustees of what I have described as the Conroy Trust.

[7] An encumbrance in favour of Robert Grierson, Reginald Webber and Desmond Grinter was registered against the title…

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 Taylor v Conroy

Details

AGLC: Taylor v Conroy [2024] NZHC 1467
Case: [2024] NZHC 1467
Decision Date: 5 June 2024

CaseChat Overview and Summary

The applicants, Christopher George Taylor and MGH Taylor Limited, trustees of the Le Roy Trust, sought an order under section 339(1) of the Property Law Act 2007 for the sale of a property at Wilson Road, South Head, and the division of the net proceeds between the trusts in proportion to their interests. The respondents, Helen Miriam Conroy and MGH Conroy Limited, trustees of the Hawkridge Doolittle Trust, opposed the application. The legal issues revolved around whether the court should exercise its discretion to order the sale of the property and the division of the proceeds, considering the factors outlined in section 342 of the Act. The court considered the nature and location of the property, the extent of the shares of the co-owners, the hardship caused to the applicants, and the contributions made to the property's improvements or maintenance. The court found that the property, a rural dwelling in poor condition, required sale to avoid ongoing liabilities and potential fines. The applicants, as trustees of the majority share, and the respondents, as trustees of the minority share, both faced financial hardship due to the property's condition and lack of funds. The court concluded that the property should be sold and directed the parties to confer to agree on comprehensive directions for the sale. If they could not agree, the applicants were to file and serve their draft directions by 20 June 2024, and the respondents were to file and serve their alternate proposed wording by 9 July 2024. The court would then determine and issue directions for sale thereafter.

Orders