Turner v Goldsbury - [2023] NZHC 179

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000337

[2023] NZHC 179

UNDER ss 339–343 of the Property Law Act 2007

IN THE MATTER OF

an application for a partition order

BETWEEN

WARREN AUSTIN TURNER,

LINDA CHRISTINE TURNER and GEOFFREY MALCOLM BILKEY
First Plaintiffs

SUZANNE LESLEY WARDLAW, DERYCK ANDREW WARDLAW, CHRISTOPHER JAMES FABER WATERS and MELISSA LEA WARDLAW

Second Plaintiffs

AND

KELVIN GLEN GOLDSBURY, CHRISTINE JOY NIGHTINGALE and ONEHUNGA TRUSTEE COMPANY LIMITED

First Defendants

CCCK INVESTMENTS LIMITED

Second Defendant

Hearing: 7–8 November 2022

Appearances:

R O Parmenter for Plaintiffs

S J Ryan and S A Kilgour for Defendants

Judgment:

13 February 2023

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 13 February 2023 at 12.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

TURNER v GOLDSBURY [2023] NZHC 179 [13 February 2023]

[1] The property at 19 The Parade, Bucklands Beach, Auckland is a cross-lease development of four flats. The flats are “owned” as follows:

(a)Flat 1 – the first plaintiffs (Turners);

(b)Flat 2 – the first defendants (Goldsburys);

(c)Flat 3 – the second defendants (CCCK); and

(d)Flat 4 – the second plaintiffs (Wardlaws).

[2] CCCK is associated with the first defendants. For convenience I will refer to the first and second defendants as the Goldsburys.

[3] The Turners wish to demolish and rebuild their flat which is dilapidated and subject to tidal inundations. They sought consent from the other cross-lease neighbours. The Goldsburys refused to give their consent. An arbitrator determined that the Goldsburys’ refusal was neither unreasonable nor unfair within the terms of the cross-lease.

[4] The Turners now seek an order of partition under s 339(1)(b) of the Property Law Act 2007 (PLA). The Wardlaws support the Turners’ application.

[5] The Goldsburys do not oppose the construction of a single-storey building within the existing floor plan of Flat 1, but oppose the Turners’ plans which extend beyond this. The Goldsburys oppose partition on the basis they will lose the bundle of rights they currently enjoy under the cross-lease and the ability to control future development of Flat 1.

Factual context

[6] The property at 19 The Parade is situated at the northern end of Bucklands Beach. The Tamaki River is just across the road.

[7] The Turners’ flat, Flat 1, is situated at the front of the property. It is a two- storey building. The top level was built in or about the 1920s. The bottom level was constructed in around 1988.

[8] Titles to Flats 2, 3 and 4 were all issued in 1997. The dwellings were built around that time and are of similar design and style. Flats 2, 3 and 4 are elevated above Flat 1 and have a coastal outlook to the west over the Tamaki River. Flat 4 exists immediately behind Flat 1. All flats share a common driveway. Each flat has an area of restricted use associated with it.

[9] The cross-lease is dated…

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.

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Details

Case: [2023] NZHC 179
Decision Date: 13 February 2023

CaseChat Overview and Summary

Turner v Goldsbury [2023] NZHC 179 concerns an application for a partition order for a cross-lease property at 19 The Parade, Bucklands Beach. The Turners, owners of Flat 1, sought to demolish and rebuild their dilapidated flat. The Goldsburys, owners of Flats 2 and 3, refused consent to the proposed plans. The Turners sought a partition order under s 339(1)(b) of the Property Law Act 2007. The Goldsburys opposed the application, arguing that partition would result in the loss of their rights under the cross-lease to control future development of Flat 1. The court had to decide whether the interests of justice favoured an order of partition. The court considered the factors under s 342 of the Property Law Act 2007, including the extent of the share in the property, the nature and location of the property, the number of other co-owners and extent of their shares, hardship, the value of any contribution made by any co-owner, and any other relevant matters. The court concluded that the s 342 factors weighed against the plaintiffs’ application. The cross-lease provides a mechanism by which disputes between neighbours may be resolved, and the Turners had unsuccessfully invoked that mechanism. The court found that the cross-lease nature of the property, and the mechanisms it provides for resolving disputes, weighed against a partition order. The court also found that the comparative hardship to the parties weighed against an order of partition. The court dismissed the application and the Goldsburys were the successful party in the litigation. The parties were urged to agree costs.

Orders