Van der Byl v Van der Byl - [2022] NZHC 850

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2021-454-32

[2022] NZHC 850

IN THE MATTER of section 339 of the Property Law Act 2007

AND

IN THE MATTER

of an application for orders for the purchase or sale of a property

BETWEEN

ROBIN CHARLES VAN DER BYL

Applicant

AND

PEGGY MIMBRY VAN DER BYL

Respondent

Hearing: 1 March 2022

Counsel:

D I Sheppard for Applicant

T G A Manktelow and H K Clow for Respondent

Judgment:

28 April 2022

JUDGMENT OF SIMON FRANCE J

Introduction

[1] This proceeding involves a family home owned equally by a mother and son. The mother is aged 88 and wishes to remain in the house as long as she can. The son is 66 years old and lives in Australia in straitened circumstances. He wishes to extract his capital so he can provide for himself. The relationship is seemingly irretrievably broken down.

VAN DER BYL v VAN DER BYL [2022] NZHC 850 [28 April 2022]

[2] The son, Mr Robin Van Der Byl, seeks orders under the Property Law Act that either the mother buys out his share or the house is sold.1 Although a 50 per cent owner, Mr Van Der Byl is willing for the purposes of any orders made in these proceedings to be treated as a one-third owner. The application is opposed. The rest of the family side with Mrs Van Der Byl, and contend that Robin should just wait until their mother/grandmother passes away or circumstances force her to leave. If Mr Van Der Byl succeeds in his core application, he also seeks orders compensating him for unpaid rents.

[3] I begin the judgment by observing resolution is not easy. Mrs Van Der Byl has lived on the property for nearly 30 years. The set-up allows a family member to reside there and assist with her needs. She understandably does not wish to move. On the other hand, her son is 66 years old and renting a bedroom in a relative’s house. He has basic Australian superannuation and a vacant block of land (recently purchased for AUD $55,000) on which he wishes to build a kit-set home (AUD $105,000 plus construction) to provide some certainty of accommodation for his remaining years. The online valuation of their jointly owned house ($850,000) would suggest a one- third payout would enable him to build his house, and secure accommodation for the rest of his life.

[4] The evidence from the respondents has not disclosed the capacity of Mrs Van Der Byl, aided by her family, to buy Robin out. The approach seems to be a collective view that how Robin came to own any of the house is dubious, and his claims will not be recognised. Reliance is very much placed on the perceived moral outrage of a son seeking orders removing his 88-year-old mother from her house.

[5] There is a sequence of topics that will provide the necessary context…

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 Van der Byl v Van der Byl

Details

AGLC: Van der Byl v Van der Byl [2022] NZHC 850
Case: [2022] NZHC 850
Decision Date: 28 April 2022

CaseChat Overview and Summary

Robin Charles Van Der Byl has applied to the New Zealand High Court for orders under the Property Law Act 2007 that either his mother, Peggy Mimbry Van Der Byl, buys out his share in a jointly owned family home or that the house is sold. The mother is aged 88 and wishes to remain in the house as long as she can, while the son is 66 years old and lives in Australia in straitened circumstances. He wishes to extract his capital so he can provide for himself. The mother is opposed to the application, and the rest of the family side with her. They contend that Robin should just wait until their mother/grandmother passes away or circumstances force her to leave.

The court had to consider the circumstances in which Robin acquired his interest in the property, the events that have occurred since Robin moved out of the house in 2009, and the personal circumstances of Robin and his mother. The court found that Robin legitimately acquired a one-third interest in the property. The court also found that the reason for the increase in Mr Van Der Byl's interest from one-third to a half was the product, at least as can be known on the evidence, of error by a legal adviser.

The court concluded that Robin legitimately acquired an interest in the property, and his parents wished to ensure his investment was protected. The court found that there is little evidence that the parties looked to the future as to what the implications of the co-ownership arrangement might be. The court considered that the idea was to secure a living option for Mrs Van Der Byl, but that if a partitioning order put that under any risk, the justice would have favoured Mrs Van Der Byl. The court found that the evidence suggests that the applicant can be paid out his share and Mrs Van Der Byl will still be in a position to purchase a new suitable property without impacting on her standard of living. If an order is not made, Mr Van Der Byl will be left in a very difficult living situation both in the present and the foreseeable future.

The court made orders for a valuation of the property to be carried out within two weeks of the judgment. Upon receipt of the valuation, Mrs Van Der Byl will have one month to offer to buy her son's interest in the property for the equivalent of one-third of the valuation. If this option is not exercised, the house is to be listed for sale either by tender or auction, whichever is the most common method in the region. Mr Van Der Byl is to receive one-third of the net proceeds. The court also made further orders under s 343 of the Act, declining the application for payments made by Mr Van Der Byl, lost rental, and an occupation fee.

Orders