Vallance v Vallance - [2014] NZHC 699

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001572 [2014] NZHC 699

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 VALLANCE Defendant

Hearing: 26 March 2014

Appearances:

P J Shamy for Plaintiffs
J E Bayley for Defendant

Interim Judgment:

8 April 2014

INTERIM JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[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, so he became the owner of a one- half share of the property as tenant in common with the trustees in his late father’s
estate. The agreement for sale and purchase between Mrs D M Vallance and

CLIVE VALLANCE and R R TEMPLETON as Trustees of the Estate of Arnold Raymond Vallance v
CHRISTOPHER VALLANCE [2014] NZHC 699 [8 April 2014]

Mr Christopher Vallance included chattels, described as stove, fixed floor coverings, blinds, curtains, drapes and light fittings.

[3] Since the death of Mrs D M Vallance died the trustees in the estate of her late husband have been endeavouring to reach agreement with Mr Christopher Vallance on a means of realising the half share of the property owned by the estate. Various proposals have been put forward, discussed and discarded and in the end it has been necessary for the trustees to bring this application to the Court for orders under the Property Law Act 2007.

[4] Section 339 of that Act provides, to the extent relevant:

339 Court may order division of property

(1) A court may make, in respect of property owned by co-owners, an order—

(a) for the sale of the property and the division of the proceeds among the co-owners; or

(b) for the division of the property in kind among the co-owners; or

(c) requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.

(2) An order under subsection (1) (and any related order under subsection
(4)) may be made—

(a) …

(b) …

(c) …

(3)

(d)

…
only after having regard to the matters specified in section 342.

(4) A court making an order under subsection (1) may, in addition, make a further order specified in section 343.

(5) Unless the court orders otherwise, every co-owner of the property (whether a party to the proceeding or not) is bound by an order…

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 [2014] NZHC 699
Case: [2014] NZHC 699
Decision Date: 8 April 2014

CaseChat Overview and Summary

The case involves trustees of the estate of Arnold Raymond Vallance, who died in 2001, bringing an application for a sale order under the Property Law Act 2007. They seek to sell a half share of a residential property, which Arnold owned as a tenant in common with his late wife, Dorothy Muriel Vallance, who sold her half share to their son, Christopher Vallance, in 2010. The trustees and Christopher Vallance are now equal owners of the property. The legal issues revolve around the ownership of certain chattels within the property, the appointment of a real estate agent to conduct the sale, the signing of necessary documents, the setting of a reserve price, and a claim for payment of occupation rent by the trustees. The Court finds that Dorothy Vallance owned all the chattels in the property when she sold her half share to Christopher Vallance, and that both the trustees and Christopher Vallance must sign the agency agreement for the sale. Both parties must also sign other documents necessary for the sale and transfer of title. The Court sets a reserve price of $428,000 and outlines a procedure if the property does not sell at auction. Lastly, the Court orders an assessment of a reasonable market rental for the property and directs that if occupation rent is assessed, arrears will be paid from Christopher Vallance's share of the proceeds of sale, with further consideration given to ongoing occupation rental being paid contemporaneously if the property does not sell within the specified timespan.

Orders