Walsh v Gough - [2022] NZHC 798

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV 2018-488-76

[2022] NZHC 798

BETWEEN
MICHAEL EDWARD WALSH

Plaintiff

AND

BARRY JOSEPH GOUGH

Defendant

Hearing: 11 April 2022

Appearances:

R Mark for Plaintiff

C Muston for Defendant

Judgment:

14 April 2022

JUDGMENT OF DUFFY J

This judgment was delivered by me on 14 April at 3 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
R Mark, Kerikeri
C Muston, Whangarei

WALSH v GOUGH [2022] NZHC 798

Introduction

[1] Mr Walsh and Mr Gough are tenants in common over a rural parcel of land near Kaeo. In November 2018, Mr Walsh obtained an order for subdivision by way of formal proof. Palmer J ordered the property to be divided per the plan shown in exhibit MW-10 of the affidavit of Mr Walsh.1 The costs of said subdivision were ordered to be covered equally by the parties. Mr Walsh registered a charging order over an adjacent property owned by Mr Gough to secure this payment.

[2] As it happened, the subsequent land survey returned acreage additional to the area recorded on the plan (which was an allotment of 80 ha each). This increased the area of Mr Walsh’s allotment to 94.3 ha and Mr Gough’s to 85.5 ha. Mr Gough considered he was getting the raw end of the deal and sought a stay of enforcement on any sale order so that he could bring a challenge. The stay was granted on 8 October 2019 to allow Mr Gough to apply for leave to appeal out of time. To date no such application has been filed.

[3] Mr Walsh now applies to discharge the stay. He says there are outstanding costs being Mr Gough’s share of the subdivision costs and rates. The share of the survey costs is roughly $18,000 and rates of around $6,000 are owing by Mr Gough. If the stay is lifted Mr Walsh can proceed to enforce the charging order registered against the block of land owned by Mr Gough, which will allow Mr Walsh to cover the costs presently owed by Mr Gough.

The subdivision decision

[4] Mr Walsh’s application for subdivision proceeded by way of formal proof before Palmer J on 29 November 2018. The Judge considered that the subdivision should be ordered. The boundary was logical and reflected the parties’ earlier agreement.2 The relative area, value and extent of the two lots of the subdivision was consistent with the extent of the co-owners’ shares, their agreement in 1989 and what each had put into the property.

1 Walsh v Gough [2018] NZHC 3104 at [28].
2 At [21].

[5]Palmer J gave orders in the following terms:3

(a)Under s 339 of the Property Law Act 2007, the property at 2539 Waiare Road, Kaeo, NA 1145/78 in the North Auckland Land Registration District, must be divided between the current co-owners, Mr Michael Walsh and Mr Barry Gough, as described in exhibit MW- 10…

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 Walsh v Gough

Details

AGLC: Walsh v Gough [2022] NZHC 798
Case: [2022] NZHC 798
Decision Date: 14 April 2022

CaseChat Overview and Summary

In Walsh v Gough, Michael Walsh sought the removal of a stay of enforcement against a judgment ordering the subdivision of jointly-owned land between himself and Barry Gough. The stay was initially granted to allow Mr Gough to pursue an application for leave to appeal out of time, a step he had yet to take. The court considered whether the impetus for the stay remained, given the prolonged delay and the impact on Mr Walsh. The court noted that Mr Gough had two options: he could apply for compensation under the Property Law Act 2007 or seek an extension to make his appeal. While costs could not be awarded against Mr Gough due to his legal aid status, the court recognised that he had a potential source of funds through compensation for an easement by Top Energy, which he offered to assign to Mr Walsh. The court accepted Mr Gough's offer as a reasonable substitute for a costs order and granted him one final chance to appeal out of time, provided he met specific conditions, including the assignment of his interest in the easement compensation and the timely filing of an application for leave to appeal. Failure to meet these conditions would result in the stay of enforcement being lifted, allowing Mr Walsh to enforce the judgment.

The court's decision hinged on balancing the rights and responsibilities of both parties. It acknowledged Mr Gough's right to appeal and the potential prejudice caused by the delay but emphasised the need for Mr Gough to take decisive action. The conditions imposed on Mr Gough aimed to mitigate the prejudice caused by the delay while giving him a final opportunity to challenge the judgment. The court recognised the importance of expeditious resolution of the matter and scheduled a conference to monitor progress on the appeal application. The outcome reflects the court's effort to ensure justice is served while accommodating the procedural rights of both parties.

Orders