Trott v Barnett - [2017] NZHC 478

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2896 [2017] NZHC 478

BETWEEN
MICHAELENA MARY TROTT

Plaintiff

AND

DEBORAH JOSEPHINE BARNETT First Defendant

ELAINE LILLIAN SMITH Second Defendant

Hearing: 22 February 2017

Counsel:

GI Seagar and JG Ussher for plaintiff
SJ Tee for defendants

Judgment:

16 March 2017

JUDGMENT OF FITZGERALD J

[ON APPLICATION FOR INVASIVE TESTING]

This judgment was delivered by me on [ ] at [ am/pm], pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Jeff Ussher, Auckland
Morton Tee, Auckland

Trott v Barnett [2017] NZHC 478 [16 March 2017]

Introduction

[1] The plaintiff has applied pursuant to r 9.34 of the High Court Rules for invasive weathertightness testing at a property in Tairua (“Property”). This is in the context of proceedings commenced by the plaintiff as lessee of the Property, against the current owners/lessors of the Property, being her stepdaughters (i.e. the first and second defendants).

Factual background

[2] The Property was originally owned by the plaintiff and her husband, who has since deceased. The first and second defendants are children from the deceased’s first marriage.

[3] On 27 June 1997, the plaintiff and her husband, the then owners of the Property, granted themselves a lease for life in relation to the Property (“Lease”). This was presumably for estate planning purposes. Pursuant to the Lease, the lessees were entitled to occupy the Property until death. Clause 6 of the Lease provided that:

6. AT the request of the Lessees, the Owners agree that they will sell the house and apply the funds in the purchase (in the name of the Owners) of another house or unit that the Lessees consider more convenient for their requirements. The substitute house will also be made available for lease by the Lessees during their lifetime, on the same rental terms and conditions as contained in this Lease including the terms of this clause.

[4] Pursuant to a sale and purchase agreement dated 10 July 1997, the plaintiff and her husband transferred ownership of the Property to the defendants for the sum of $210,525. The purchase price was documented as a loan from the plaintiff and her husband to the defendants, being payable on demand and interest free. It was accordingly vendor finance. Subsequently, the loan was forgiven pursuant to the provisions of the Estate and Gift Duties Act 1968. The result was that the defendants did not provide valuable consideration for the transfer of the Property to them.

[5] Pursuant to Special Condition 16 of the sale and purchase agreement, the Property was sold subject to the Lease. As such, the defendants became the owners and lessors of the Property and the plaintiff (and her husband) the lessees. The

plaintiff’s husband died in 2006 and the plaintiff accordingly became the sole lessee under the Lease. The plaintiff has remained in occupation of the Property since that time.

[6] It seems that, in or around April 2016, issues arose between the plaintiff and the defendants concerning…

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 Trott v Barnett

Details

AGLC: Trott v Barnett [2017] NZHC 478
Case: [2017] NZHC 478
Decision Date: 16 March 2017

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether invasive testing should be ordered in a property dispute between Michaelena Mary Trott, the plaintiff, and Deborah Josephine Barnett and Elaine Lillian Smith, the defendants. The plaintiff, a lessee of the property, sought invasive weathertightness testing due to alleged water ingress and mould issues. The defendants, the current owners and lessors, opposed the testing. The court was required to determine whether such invasive testing was necessary for the proper determination of the issues in the case, and if so, who should carry out the testing and what its scope should be. The court held that invasive testing was necessary to ascertain the current water-tightness of the property. Given the change in stance by the plaintiff’s counsel at the hearing, who proposed that the plaintiff carry out the testing at her own cost, and the provision of an appropriate undertaking as to damages, the court was satisfied that the plaintiff would bear the cost of the testing. The court appointed Mr Chris Phayer, a chartered and registered building surveyor, as the independent expert to carry out the testing. The court also restricted the scope of invasive testing to specific areas identified in the reports, rather than making a more open-ended order. The court directed the parties to file a joint memorandum setting out their formulation of the specific areas for testing. If agreement could not be reached, the court would make an order confirming the specific areas for testing. All costs associated with the testing were to be met by the plaintiff, subject to the plaintiff being entitled to seek to recover those costs through these proceedings. The court also allowed any party to have their own expert present at the testing, solely for the purposes of observing, rather than directing or controlling, the testing. The court reserved leave for any party to seek any further orders that may be necessary to give effect to the above orders.

Orders