Tolley v Hona - [2021] NZHC 2481

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2020-463-000055

CIV-2020-463-000056 [2021] NZHC 2481

IN THE MATTER OF

AND
the Property Law Act 2007

IN THE MATTER OF

the Protection of Personal and Property Rights Act 1988

BETWEEN

NGAHUIA ROBERTA TOLLEY DOUGLAS-DAVIS JULIAN HONA MADELEINE NGAROMA WILLIAMS NGAIRE IRIHAPETI KHAN

Plaintiffs

AND

MARGARET HAANA DENYS HONA

Defendant

Hearing: 23 July 2021

Appearances:

P Birks for the Plaintiffs

No appearance for the Defendant

Judgment:

21 September 2021

INTERIM JUDGMENT OF WALKER J

This judgment was delivered by me on 21 September 2021 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

TOLLEY & ORS v HONA [2021] NZHC 2481 [21 September 2021]

[1] The plaintiffs and the defendant are siblings. They, along with the estate of their late mother and late sister, are registered owners of the former family home at 4 Knight Place, Rotorua (the Property). The parties have fallen out after the death of their mother, Emma Atamira Hona, aged 80 years, on 24 June 2017. The defendant is living in the Property, refuses to engage with other family members and has not paid rent or outgoings. She has excluded the plaintiffs from the Property.

[2] There are two proceedings before the Court. The first is an application under s 339 of the Property Law Act 2007 (the Act) for the sale of the property to the third named plaintiff and associated orders. In the second proceeding the plaintiffs seek to recover funds belonging to their mother which they allege the defendant misapplied in breach of fiduciary duty when she was purporting to look after their mother’s property affairs.

[3] The defendant has not filed a statement of defence or taken any steps in the proceedings. The plaintiffs proceed by way of formal proof. There is proof of service on the defendant. Mr Birks has confirmed that all non-parties who may have an interest in the proceedings have been served, including the Public Trust in Rotorua.

Background

[4] As some of the parties share a common surname, I shall refer to those individuals by their first names to distinguish them.

[5] The title to the Property produced in evidence to the Court records the registered proprietors as Emma as to a one half share and Ngahuia Roberta Tolley, Madeleine Ngaroma Williams, Douglas-Davis Julian Hona, Denys Haana Hona, Ivonne Kristina Hona and Ngaire Irihapeti Hona as to a one half share. The Property is described as an estate in fee simple of 819 square metres or less (Lot 151, DP South Auckland 5621). There is no mortgage registered. There is a statutory land charge against the share or interest of Douglas pursuant to s 32 of the Legal Services Act 2000 registered against the title on 4 October 2010. There is no current registered valuation for reasons which are explained below. The September 2020 rateable value

reassessment on the One Roof website is recorded as $390,000. The plaintiffs…

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 Tolley v Hona

Details

AGLC: Tolley v Hona [2021] NZHC 2481
Case: [2021] NZHC 2481
Decision Date: 21 September 2021

CaseChat Overview and Summary

The High Court of New Zealand considered a case involving siblings who were co-owners of a property. The plaintiffs sought orders for the sale of the property and the recovery of funds misappropriated by the defendant. The siblings had fallen out after the death of their mother, who had appointed the defendant as the property manager. The defendant was charged with theft by a person in a special relationship and pleaded guilty. The court was required to decide whether to grant the plaintiffs' requests for the sale of the property and recovery of funds. The court reasoned that the relevant criteria under the Property Law Act 2007 favoured orders being made under the Act because the plaintiffs owned two thirds of the property, they were in an intolerable position, and the defendant's conduct had disadvantaged the plaintiffs. The court granted leave to the plaintiffs to amend the statement of claim to include a claim for occupation rent. The court ordered the defendant to allow access to the property for valuation purposes, ordered the property to be sold to one of the plaintiffs, and directed that a copy of the judgment be provided to the Public Trust. The court adjourned the proceeding to allow for potential joinder of the estate of Emma.

Orders