Tomai v Toka - [2019] NZHC 1716

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2800

[2019] NZHC 1716

BETWEEN
CATHERINE ISOBEL TOMAI and WARREN ERIC MATTHES

Plaintiffs

AND

JENNIFER TOKA

First Defendant

FRASER WIREMU HONE TOKA

Second Defendant

Hearing: 19 July 2019

Counsel:

Mr A M Swan for the Plaintiffs

Mr W C Pyke for the First Defendant

Judgment:

19 July 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH

This oral judgment was delivered by me on 19 July 2019, pursuant to r 11.3 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Webster Law Ltd, Auckland Simpson Legal, Auckland

TOMAI v TOKA [2019] NZHC 1716 [19 July 2019]

[1] The first defendant applies under s 56(3) of the Senior Courts Act 2016 for leave to apply against an order made by Associate Judge Bell on 18 June 2016.

[2] The background to the proceeding was described by Associate Judge Bell in his Minute of 18 June 2016 as follows:

[1] In this proceeding, the plaintiffs apply under s 339 of the Property Law Act 2007 for an order for the sale of the property at 23 Shelly Beach Road, Waiheke, and for equal division of the proceeds of sale. They have applied for summary judgment.

[2] The parties are the four owners of the property. Each of them owns an equal quarter share. Jennifer Toka, the first defendant, is the mother of the other parties. Catherine Tomai and Warren Matthes are the children of her first marriage; Fraser Toka is the child of her third marriage.

[3] The legal description of the property is lot 62, Deposit Plan 24255 and it is described in identifier NA1131/201 Auckland Registry. The property is about 1000 square metres in area. It is a residential property with a house. The property originally belonged to Mrs Toka's uncle who died in 1989. A quarter share of the property was transferred to Mrs Toka in 1992. She gave a mortgage back for that share. The children obtained their quarter shares in 2017. The property has been the family home. The children are grown up and no longer live there. Mrs Toka has been in occupation throughout. Initially, Fraser agreed to the property being sold. Mrs Toka initially opposed the property being sold but she has recently instructed Mr Pyke. For this hearing, she has changed her position and now agrees that the property should be sold.

[4] There are, however, differences between the parties – between Mrs Toka on the one hand and the plaintiffs on the other as to how the property should be sold. Fraser, while present in court, does not want to take an active part on those aspects. The parties disagree as to the timing of the sale, and some other aspects. The differences between them are not matters that can be decided on a summary judgment application.

[3]In their statement of claim, the plaintiffs had sought the following relief:

(a)An order pursuant to s 339(1) of…

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 Tomai v Toka

Details

AGLC: Tomai v Toka [2019] NZHC 1716
Case: [2019] NZHC 1716
Decision Date: 19 July 2019

CaseChat Overview and Summary

In the case of Tomai v Toka, the first defendant applied for leave to appeal an order made by Associate Judge Bell on 18 June 2016. The plaintiffs, Catherine Isobel Tomai and Warren Eric Matthes, had applied for an order for the sale of a property at 23 Shelly Beach Road, Waiheke, and for equal division of the proceeds of sale. The defendants, Jennifer Toka and Fraser Wiremu Hone Toka, opposed the sale. Associate Judge Bell granted the plaintiffs' application in part, ordering the sale of the property but recognising that further provisions were needed before it could be implemented. The court also awarded costs to the plaintiffs on the summary judgment application. The first defendant applied for leave to appeal the order, arguing that it was interlocutory and required leave under section 56(3) of the Senior Courts Act 2016. The plaintiffs argued that the order was a final order granting summary judgment and any appeal against it was governed by section 56(4)(b) of the Senior Courts Act. The court found that the order was a binding final order for sale and that leave was not required for an appeal under section 56(3). The application for leave to appeal was dismissed. The court also declined to make an order staying enforcement of the costs order made by Associate Judge Bell, pending appeal or a review of the order made by a Justice of the Court at the substantive hearing. The issue of costs on the present application was left to counsel to confer. If an award was sought, the plaintiffs could file a memorandum within 10 working days, and the first defendant could file a memorandum in reply within a further five working days. The court would then deal with the application on the papers.

Orders