Walsh v Gough - [2018] NZHC 3104

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2018-488-76

[2018] NZHC 3104

UNDER section 339 of the Property Law Act 2007

IN THE MATTER

of an order for the division of property among co-owners

BETWEEN

MICHAEL EDWARD WALSH

Plaintiff

AND

BARRY JOSEPH GOUGH

Defendant

Hearing: 28 November 2018

Appearances:

R C Mark for the Plaintiff

No appearance by or for the Defendant

Judgment:

29 November 2018

JUDGMENT OF PALMER J

This judgment was delivered by me on 29 November 2018 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:
Richard Mark, Solicitor, Kerikeri

WALSH v GOUGH [2018] NZHC 3104 [29 November 2018]

Summary

[1] Mr Mike Walsh and Mr Barry Gough own a 178-hectare property near Kaeo, as tenants in common. Mr Walsh applies to subdivide it equally between them. Mr Gough has taken no steps in the proceeding. I am satisfied it is just to subdivide the property as sought and the parties should bear the costs of that equally. I so order.

The proceeding

[2] Mr Walsh has initiated proceedings to split a property, which he owns as a tenant in common with Mr Gough, equally between the two of them. Mr Gough was served with the statement of claim, notice of proceedings and initial disclosure on 22 August 2018. He has failed to give any address for service and has taken no steps in the proceedings. Under r 15.9 of the High Court Rules 2016, if a defendant does not file a statement of defence the plaintiff may seek judgment by formal proof. Mr Gough was advised of that in the notice of proceedings. Mr Walsh has filed evidence, and given evidence before me and seeks judgment.

The property

[3] In 1984, Mr Walsh and Mr Gough pooled their resources and agreed to purchase a property of around 178 hectares,1 at 2539 Waiare Road, Kaeo. It is rural and much of it is steep, with regenerating native bush.

[4] A draft partnership agreement (the Agreement) was drawn up by a lawyer in 1984. Mr Walsh’s evidence before me is that, to the best of his knowledge, the Agreement was signed by both parties but he was never given a signed copy.2 He has put in evidence a draft unsigned version of the Agreement which is the best evidence he has of it. Relevant clauses of the Agreement are:3
“the term of the partnership” means the term of duration of the partnership. The term of the partnership is 21 years unless otherwise shown herein.

…

1 Affidavit of Robert Donaldson, 14 November 2018, at [28].
2 Transcript at page 2/line 1–10 and 27–28.
3 Affidavit of Michael Walsh, 14 November 2018, at exhibit MW-2.

VI THE DURATION OF THE PARTNERSHIP

Subject to the provisions of Section 36 and 38 of the Partnership Act 1908 and notwithstanding anything elsewhere in these presents contained the partnership shall not be wound up or dissolved…

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 [2018] NZHC 3104
Case: [2018] NZHC 3104
Decision Date: 29 November 2018

CaseChat Overview and Summary

The case of Walsh v Gough was heard in the High Court of New Zealand in Whangarei. The matter involved a dispute between Michael Walsh and Barry Gough, co-owners of a 178-hectare property in Kaeo, over the division of the property. Walsh sought to subdivide the property equally between the two parties, while Gough had not engaged in the proceedings and had not filed a statement of defence.

The central legal issue before the court was whether the property should be divided as requested by Walsh and, if so, how the costs associated with the subdivision should be apportioned between the parties. The court had to consider the provisions of the Property Law Act 2007 and the relevant factors outlined in the legislation for making orders concerning co-owned property. The court also had to determine whether the partnership agreement between the parties, which was intended to last for 21 years, was still in effect and, if so, how that would impact the outcome.

The court found that the partnership agreement had expired and that it was just to divide the property as requested by Walsh. The boundary proposed by Walsh was logical and consistent with the parties' earlier agreement. The court noted that the division reflected the extent of the co-owners' shares, their agreement in 1989, and the contributions each had made to the property. The court also decided that the parties should bear the costs of the 2018 subdivision equally, as it was a fair and equal division benefiting both parties.

In conclusion, the court ordered the property to be divided between the co-owners as per the 2018 subdivision plan, and directed that the reasonable costs of effecting the subdivision be paid equally by the parties. The court awarded costs to Walsh on a standard basis and reasonable disbursements.

Orders