Vallance v Vallance - [2015] NZHC 957

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001572 [2015] NZHC 957

UNDER the Property Law Act 2007

IN THE MATTER

of an application for a sale order pursuant to ss 339 to 343 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: 6 May 2015

Appearances:

P J Shamy for Plaintiffs
J E Bayley for Defendant

Judgment:

7 May 2015

SECOND INTERIM JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] The Court issued an interim judgment on this proceeding on 8 April 2014. The issues between the plaintiff estate and the defendant arise from their co- ownership of a property in Christchurch, in which the defendant resides. The plaintiff trustees in the estate wish to sell their interest in the property so that the estate may be distributed.

[2] After the judgment was issued the property was offered for sale by auction, but did not sell. Recently, the property has been valued, and a market value of
$390,000 has been assessed. Both the trustees and the defendant accept this figure, and both agree to an order being made that the defendant purchase the estate’s one
half share in the property for a figure based on half of this sum.

VALLANCE and TEMPLETON v VALLANCE [2015] NZHC 957 [7 May 2015]

[3] The only issue between the parties in relation to this is whether there should be deducted from the market value, before dividing it in half in order to reach a sale price, a figure equating real estate agent’s commission, and a reasonable allowance for sale expenses. Counsel for Mr Vallance has calculated a sum of $20,288.25 for these items. The defendant is prepared to purchase the estate’s half share of the property, but the parties differ on the price that should be paid, because of the defendant’s wish to receive a credit against the purchase price for half of this sum.

[4] Mr Bayley says that expenses as assessed would be deducted if a real estate agent were instructed, and effected a sale, so the estate will receive more for its half share of the property if the defendant buys it, than it would if it was sold on the open market by an agent. An agent was originally instructed, by order of the Court, to endeavour to sell the property by auction, and subsequently by private treaty. Mr Bayley says it would be unfair for the defendant to have to pay a price based on the market value without a credit for the otherwise inevitable costs of sale.

[5] Mr Bayley notes that in Leary v Leary.1 The Court, in dealing with the purchase by a wife of a husband’s share of a property, fixed the price taking into account the deduction of sale expenses. Mr Bayley correctly acknowledged, however, that there is authority to the contrary, subsequently.2

[6] Finally Mr Bayley notes that s 339(1)(c) of the…

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 [2015] NZHC 957
Case: [2015] NZHC 957
Decision Date: 7 May 2015

CaseChat Overview and Summary

Vallance v Vallance concerned a dispute over the sale of a jointly owned property in Christchurch. The plaintiffs, Clive Conway Vallance and Ross Raymond Templeton as trustees of the estate of Arnold Raymond Vallance, sought to sell their half share of the property. The defendant, Christopher James Vallance, who resided in the property, agreed to purchase but disputed the price, arguing that expenses such as real estate agent's commission and sale expenses should be deducted from the assessed market value of $390,000. The primary legal issue was whether these expenses should be deducted from the sale price.

The court considered the arguments from both sides. Counsel for the defendant argued that it would be unfair for the defendant to pay the full market value without a credit for these expenses, citing a previous case where the court deducted such expenses. Counsel for the plaintiffs, however, argued that the common basis for valuation in property cases is the open market value without deductions for sale expenses, as typically one party retains the property. The court ultimately decided that no deduction should be made, as no expenses had been incurred, the sale was at market value, and deducting a sum for notional expenses would result in the estate incurring an expense it did not actually bear.

The court ordered that the defendant would purchase the plaintiffs' half share for $195,000, half of the assessed market value. Additionally, the court ordered the defendant to pay $11,833 on account of his final liability for occupation rent, which would be assessed later. The court emphasized that this interim payment was not binding and would be adjusted based on the final assessment of occupation rent. The court reserved costs and procedural directions for a later determination.

Orders