Vallance v Vallance - [2016] NZHC 1964

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001572 [2016] NZHC 1964

UNDER the Property Law Act 2007

IN THE MATTER

of an application for a sale order pursuant to ss 339 to 343 of the Property Law Act

2007

BETWEEN

CLIVE CONWAY VALLANCE AND ROSS RAYMOND TEMPLETON AS TRUSTEES OF THE ESTATE OF ARNOLD RAYMOND VALLANCE Plaintiffs

AND

CHRISTOPHER JAMES VALLANCE Defendant

Hearing: 15 August 2016 (Determined on the papers)

Counsel:

P J Shamy for Plaintiffs
J E Bayley for Defendant

Judgment:

23 August 2016

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS ON OCCUPATION RENT

[1] The plaintiffs are the trustees in the estate of A R Vallance who died in 2001. At the time of his death Mr Vallance was the owner of a half share of a residential property as a tenant in common with his late wife, Mrs D M Vallance.

[2] Mrs Vallance was a life tenant in her late husband’s estate and continued to live in the house after his death. In October 2001 she sold her half share of the property to the defendant, Christopher Vallance. As a result the plaintiffs and the defendant became tenants in common in equal shares of the house. Issues arose,
however, in relation to ownership of certain chattels within the house.

VALLANCE & TEMPLETON as trustees of the Estate of A R VALLANCE v VALLANCE [2016] NZHC 1964 [23 August 2016]

[3] On 8 April 2014 the Court issued an interim judgment dealing with the dispute between the parties in relation to the chattels in issue. The Court found that the defendant owned the stove, fixed floor coverings, blinds, curtains, drapes and light fittings in the house.1

[4] The estate sought an order that Mr Vallance pay occupation rent in relation to his half share of the house. For reasons given in the interim judgment it was not possible to resolve this issue at that time. The judgment contains a discussion of the issue at paragraphs [30] to [38].

[5] On 26 May 2014, following receipt of memoranda from counsel on the outstanding issues raised in the interim judgment, the Court issued a minute in which it recorded the rental rates to be applied for periods within the time that Mr Vallance occupied the house and then laid down the periods for which occupation rent would be payable.2 The Court decided:3

(a) Occupation rent for 2012 would be $380 per week. (b) Occupation rent for 2013 would be $400 per week. (c) Occupation rent thereafter would be $440 per week.

[6] Applying these figures to the periods in question, I expressed the following views in relation to occupation rent:4

(a) It will run from 1 November 2011, a period of just over three months since Mrs Vallance died.

(b) For the first 12 months rent would be assessed on the basis of
$380 per week, for the following 12 months, at $400 per week, and for the period since, at $440 per week.

(c) The sum to be…

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 Vallance v Vallance

Details

AGLC: Vallance v Vallance [2016] NZHC 1964
Case: [2016] NZHC 1964
Decision Date: 23 August 2016

CaseChat Overview and Summary

The case of Vallance and Templeton as trustees of the Estate of A R Vallance v Vallance involves a dispute over occupation rent in relation to a residential property. The plaintiffs, trustees in the estate of A R Vallance who died in 2001, and the defendant, Christopher Vallance, are tenants in common of the property. The dispute centers on the valuation of chattels in the house and the calculation of occupation rent that the defendant should pay to the plaintiffs. The High Court of New Zealand, Christchurch Registry, was tasked with determining the legal issues surrounding the valuation of chattels and the calculation of fair occupation rent.

The court had to decide whether the defendant's interpretation of an interim judgment, which led to an extensive discount on the occupation rent, was appropriate. The interim judgment had directed that the rent be assessed on the assumption that a tenant would provide the chattels in question. The defendant's counsel argued that this interpretation led to a commercially absurd result, as the cost to the landlord would be significantly higher than the cost of purchasing new chattels. The court needed to determine if this interpretation was fair and in line with the requirement to set a fair occupation rent.

The court found that the defendant's interpretation, while technically correct, led to an unfair and absurd result. The court emphasized that fair occupation rent should be fair to both sides and should not result in one party bearing an unreasonable cost. The court also noted that the defendant's witness had acknowledged that a landlord would not advise letting a property without chattels if it would cost significantly more than purchasing new chattels. The court concluded that another interpretation, which involved crediting the tenant for the cost of the chattels, was more in line with commercial common sense and the requirement to set a fair occupation rent.

The court calculated the occupation rent based on the evidence provided by the valuers and set the value of the chattels at half their new value, considering their used condition. The final outcome was that the defendant should pay the plaintiffs the sum of $29,613.31 as occupation rent. The court reserved costs, indicating that if the parties could not agree on costs, memoranda could be filed within ten working days, each not exceeding six pages in length.

Orders