Whimp v Bigham - [2016] NZHC 1261

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-766 [2016] NZHC 1261

IN THE MATTER OF
an application under s 339 of the Property

Law Act 2007

BETWEEN

SIMON JOHN WHIMP Plaintiff

AND

ANATIA BIGHAM Defendant

Hearing: 10 June 2016

Counsel:

J A Herd and J L Mills for Plaintiff
No appearance for Defendant

Judgment:

13 June 2016

RESERVED JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
9.45 am on the 13th day of June 2016

WHIMP v BIGHAM [2016] NZHC 1261 [13 June 2016]

[1] Mr Whimp and Ms Bigham were in a relationship from approximately

April 2006 until January 2014. On 18 August 2009, they purchased a property at

14C Sharpe Crescent, Wainuiomata (the property) as tenants in common. The property was purchased from Ms Bigham’s father. The price was $240,000, which was funded by a $40,000 gift made to Ms Bigham by her father and a mortgage to BNZ. The amount of the BNZ mortgage was $214,000, $14,000 of which was used to pay various personal expenses.1

[2] Things did not, however, go as expected. Ms Bigham has, since 2009, been living in the property with her son. Mr Whimp never moved in. He has continued to pay half the mortgage payments and has also, on his account, paid the insurance on the house and/or its contents.

[3] Perhaps surprisingly, the evidence suggests that the house has decreased in value between 2009 and mid 2015.2 In any event Mr Whimp understandably wishes to relieve himself of the mortgage commitments from which he has received no benefit. Ms Bigham has earlier indicated her willingness and desire to buy him out but subsequent discussions have come to nothing. It seems that she may not have the financial wherewithal to do so.3

[4] Mr Whimp has therefore filed these proceedings in which he seeks:

(a) an order for division of property under s 339(1)(a) of the Property Law Act 2007 (the PLA) and the division of the proceeds (or debt) amongst the co-owners; and

(b)an order pursuant to s 343(f) of the PLA requiring the defendant to pay the plaintiff a fair occupation rent for the period of occupation.

1      Some $7,000 of those funds were used to pay off Mr Whimp’s credit card debt and $4,000 was put towards Ms Bigham’s moving and set up costs.   Where the rest was spent is not now ascertainable.
2      A July 2015 valuation put the worth of the property at $200,000.
3      It was on 17 January 2014 Mr Whimp told Ms Bigham that he no longer wished to own the property. She said that she wished to keep the property and would investigate arrangements for buying the plaintiff out of his share. Mr Whimp says that between January 2014 and October
2015, Ms Bigham was given many opportunities to buy him out. He has detailed this in his affidavit and I accept his evidence about this.

[5] Ms Bigham has filed no statement of…

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 Whimp v Bigham

Details

AGLC: Whimp v Bigham [2016] NZHC 1261
Case: [2016] NZHC 1261
Decision Date: 13 June 2016

CaseChat Overview and Summary

In Whimp v Bigham, the plaintiff, Simon John Whimp, sought an order for division of property under the Property Law Act 2007 and an order for fair occupation rent from the defendant, Anatia Bigham. The dispute arose from the ownership of a property in Wainuiomata, which the parties had purchased as tenants in common in 2009. Mr Whimp never moved into the property and sought to be relieved of his financial obligations relating to it. The legal issues before the court were whether to grant an order for the sale of the property and, if so, the division of the proceeds, and whether to order the defendant to pay fair occupation rent to the plaintiff. The court considered the extent of the parties’ shares, the nature and location of the property, the hardship that would be caused by the refusal of the order, and the value of the contributions made by the parties. The court found that the property should be sold, as the plaintiff had never lived in or enjoyed any benefits from the property, and the property had decreased in value. The court also declined to make an order for occupation rent, as the plaintiff had accepted that pursuing the matter might not be productive and would result in further delays. The court ordered that the property be sold by public auction and that the proceeds be divided equally between the parties, subject to the payment of costs and the mortgage. The plaintiff was entitled to costs on a Category 2B basis.

Orders