Willems v Willems - [2024] NZHC 3305

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2023-442-37

[2024] NZHC 3305

UNDER the Property Law Act 2007

IN THE MATTER

of an application under s 339(1) of the Property Law Act for an order of division of property

BETWEEN

DANIEL JAMES WILLEMS

Applicant

AND

JOSCELYN ANNE WILLEMS and ROBERT JOHANNES WILLEMS

Respondents

Hearing: 7 October 2024

Counsel:

L J Ingham and L S B Acland for Applicant P J Bellamy for Respondents

Judgment:

8 November 2024

Reissued:

12 November 2024

JUDGMENT OF BOLDT J

Introduction

[1] In our current era of historically high house prices, those aspiring to buy their first home have become increasingly reliant on family members to help them gain a foothold on the property ladder. This case may serve as something of a cautionary tale.1

1 This judgment was reissued under the slip rule on 12 November 2024.

WILLEMS v WILLEMS [2024] NZHC 3305 [8 November 2024]

[2] In 2019, three members of the Willems family, 21-year-old Daniel Willems and his parents Joscelyn and Robert, decided it would be in their mutual interest to buy a house together. Things have gone badly wrong.

[3] Today, Daniel and his parents are not speaking. For a time, they were communicating only through their lawyers, then even that channel of communication ceased. In September 2023, Daniel lodged an originating application asking the Court to order the sale of the house he and his parents bought together. Joscelyn and Robert filed a notice of opposition and an affidavit in support.

[4] After a few months Joscelyn and Robert stopped engaging. In February 2024 the parties agreed the claim was more appropriately dealt with as a conventional civil proceeding, and agreed a timetable for an exchange of pleadings. Daniel filed his statement of claim on 4 March 2024, and the statement of defence was due on 10 April. Then nothing happened. The case was called in the Judge’s Chambers List on 29 April. There was no appearance on Joscelyn and Robert’s behalf. Justice La Hood directed that if they did not file a statement of defence by 3 May, they could no longer do so without the Court’s leave, and the matter would be listed for formal proof.

[5] The Court heard nothing further from Joscelyn and Robert, either in person or via Mr Bellamy, who had been acting for them. No statement of defence was ever filed, and Daniel’s claim was set down for a formal proof hearing.2

[6] As a result, Joscelyn and Robert are barred from calling evidence in opposition to Daniel’s application. Nonetheless, it is still incumbent upon Daniel to produce sufficient evidence to persuade me an order for sale is appropriate, and, if so, on what terms.3

Background

[7] In 2019, Daniel had been in a five-year de facto relationship with a woman named Georgia Harper. Joscelyn, Robert, Georgia and Daniel began discussing an arrangement they hoped would be mutually beneficial. Georgia and Daniel wanted to

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 Willems v Willems

Details

AGLC: Willems v Willems [2024] NZHC 3305
Case: [2024] NZHC 3305
Decision Date: 8 November 2024

CaseChat Overview and Summary

This case involves an application for an order for the sale of a jointly-owned property under s 339 of the Property Law Act 2007. Daniel Willems applied for an order for the sale of a property in Wakefield which he and his parents, Joscelyn and Robert, purchased together. The application proceeded by formal proof, and the parents did not participate. The legal issue was whether an order for sale should be made and, if so, how the proceeds should be divided. The court found that the legal title to the property reflected the parties' underlying beneficial interests and that an order for sale should be made. The court also found that the parents were entitled to recover their initial capital contribution and the sum they paid to clear the applicants' debts. However, the court did not order that the parents pay occupation rent or repay the sum they borrowed to buy a car. Instead, the court ordered that the parents have the opportunity to purchase Daniel's share of the property before it is sold on the open market. Costs were awarded to Daniel on a 2B basis, reduced by 35% for unsuccessful claims.

The court's reasoning focused on the nature and location of the property, the contributions made by each party, and the hardship that would be caused to each party by the making or refusal of an order for sale. The court found that the property was a valuable asset in a good location and that the parents had made significant contributions to the purchase and maintenance of the property. However, the court also found that Daniel was entitled to terminate the joint ownership and extract his equity from the property. The court ordered that the parents have the opportunity to purchase Daniel's share of the property before it is sold on the open market, and that the proceeds of sale be divided according to the court's directions. The court also awarded costs to Daniel on a 2B basis, reduced by 35% for unsuccessful claims.

Orders