Telford v Telford - [2022] NZHC 3564

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-000054

[2022] NZHC 3564

UNDER Part 18 of the High Court Rules 2016

IN THE MATTER OF

Constructive trust, resulting trust, express trust

BETWEEN

WILLIAM JAMES TELFORD and EILEEN TELFORD

Plaintiffs

AND

WILLIAM JAMES TELFORD and TESSA EVE MARTIN

Defendants

Hearing by VMR: 15 December 2022

Counsel:

PA Depledge for Plaintiffs MA Dempster for Defendants

Judgment:

20 December 2022

JUDGMENT OF DOWNS J

(Relief)

This judgment was delivered by me on Tuesday, 20 December 2022 at 2 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Clyde Law, Hamilton.
McKenna King Dempster Ltd, Hamilton. PA Depledge, Hamilton.

TELFORD v TELFORD [2022] NZHC 3564 [20 December 2022]

The case

[1] This judgment is a sequel to my decision of 16 June 2022 and should be read with it.1 In short, I found Billy and Eileen had a 73 percent interest in the property, and Jamie and Tessa had a 27 percent interest in the property.2

[2] Billy and Eileen want to buy Jamie and Tessa’s interest with their daughter, Shelley.3 Shelley now lives with Billy and Eileen at the property, along with her children. Jamie and Tessa want to sell their interest, albeit on the open market. That, of course, would require the property to be sold. Billy and Eileen do not want to sell the property. They want to keep living there with Shelley and her children. This judgment addresses the impasse.

[3] For convenience, I call Billy and Eileen’s proposal the private sale. I call Jamie and Tessa’s the open market sale. These are labels, not more.

Principle

[4] Section 339(1) of the Property Law Act 2007 enables the Court to make orders in the type of situation that arises here:

339 Court may order division of property

(1)A court may make, in respect of property owned by co-owners, an order—

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

(b) for the division of the property in kind among the co-owners; or

(c) requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.

1 Telford v Telford [2022] NZHC 1412.
2 I continue to use Christian names for the reasons identified in my earlier judgment at [1].
3 Billy and Eileen assure the Court they will enter a written property sharing agreement drafted by a solicitor. This judgment presupposes that would occur if there is a private sale.

[5] Section 343 of the same Act affords the Court a broad suite of supplementary powers in relation to an order made under s 339.

[6] Section 342 identifies matters the Court must consider in determining whether to make an order under s 339(1):

(a)the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the…

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 Telford v Telford

Details

AGLC: Telford v Telford [2022] NZHC 3564
Case: [2022] NZHC 3564
Decision Date: 20 December 2022

CaseChat Overview and Summary

The High Court of New Zealand, Hamilton Registry, was presented with a dispute between William James Telford (Billy) and Eileen Telford, who hold a 73% interest in a property, and William James Telford and Tessa Eve Martin, who hold a 27% interest. Billy and Eileen sought to buy out Jamie and Tessa's interest, proposing a private sale, while Jamie and Tessa preferred an open market sale which would necessitate the property being sold. The court was tasked with deciding which approach was appropriate, considering the respective interests and preferences of the parties.

The legal issues centered on the court's powers under the Property Law Act 2007 to order the sale of property and division of proceeds among co-owners, or to require one co-owner to purchase another's share at a fair price. The court needed to weigh the factors outlined in Section 342 of the Act, including the extent of each party's interest, the nature of the property, the potential hardship of each option, and the value of contributions to the property. The court also had to consider the economic context affecting property valuations.

The court determined that a private sale was preferable to avoid the disruption and potential distress to Billy, Eileen, and their granddaughter Shelley, who currently reside at the property. The court found that the valuation figures were closely aligned, and the economic outlook suggested stability or a decline in property prices. The court also noted that the private sale could be completed within a reasonable timeframe, addressing Jamie and Tessa's concern about the duration of the sale process. Should the private sale not proceed by 28 February 2023, the court mandated an open market sale.

The court further ruled that Billy and Eileen must pay Jamie and Tessa rent at $174.15 per week from 16 June 2022 until settlement, despite Billy and Eileen's argument that Jamie and Tessa left due to drug-related issues. The court did not award reimbursement for insurance, rates, or mortgage as there was no evidence that Jamie and Tessa had been contributing to these expenses.

Finally, the court set conditions for both the private and open market sales, including the valuation of the property at $1,292,500, the requirement for Jamie and Tessa to execute necessary documentation for the private sale, and specific procedures for the open market sale if the private sale did not proceed.

Orders