Willems v Willems
[2024] NZHC 3305
•8 November 2024
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
2 High Court Rules 2016, r 15.9.
3 See Solomon v Prater [2021] NZHC 481 at [11].
buy a home of their own, but they were in debt and had no savings or capital. Joscelyn and Robert had been living in their own home for some time and wanted to move somewhere bigger.
[8] In broad terms, the arrangement the two couples reached ran along the following lines:
(a)Joscelyn and Robert would sell their home and apply the proceeds to the purchase of a new property;
(b)the new property would be bought jointly by Joscelyn and Robert, on one hand, and Daniel and Georgia on the other; and
(c)the two couples would live together in the new home. They would contribute in roughly equal shares to the property’s outgoings, including normal household expenses, rates, insurance and payment of the mortgage.
[9] The parties found an ideal property — 1 Turner Place in Wakefield. It is a large home with two separate living areas, enabling the two couples to live there without being in each other’s pockets.
[10] Before the parties could obtain a mortgage together, it became necessary for Daniel and Georgia to pay off their debts, which exceeded $50,000. It appears ANZ, which was financing the purchase, was unwilling to advance funds with Daniel and Georgia as co-mortgagors until their debts were discharged.
[11] To allow the arrangement to proceed, Joscelyn and Robert agreed to pay Daniel and Georgia’s debts. In argument there was some discussion about whether the debts should properly be regarded as Georgia and Daniel’s joint responsibility, as most were originally incurred by Georgia. For reasons discussed in more detail below, the identity of the original debtor does not matter. Daniel and Georgia were in a de facto relationship. There can be no doubt Joscelyn and Robert decided to pay the younger couple’s debts to ensure Daniel was able to participate in the joint purchase. In late
2019, at around the time they purchased 1 Turner Place, Joscelyn and Robert paid
$55,231.64 to clear Daniel and Georgia’s debts.
[12] The two couples purchased 1 Turner Place for $770,000. Joscelyn and Robert contributed $157,898.10, and the mortgage to ANZ was $616,000. Daniel and Georgia made no capital contribution.
[13] The certificate of title recorded that the property was held by the four owners in unequal shares. Joscelyn and Robert owned three-eighths of the property each, and Daniel and Georgia each owned one-eighth. After the purchase was completed and the two couples moved in together, they began contributing, roughly evenly, to the mortgage and other outgoings.
[14] Very soon afterwards, in early 2020, Georgia left. She had done well from the arrangement. Daniel’s parents had cleared debts she was largely responsible for running up. She remained on the title as a one-eighth owner, but made no further contribution to the property.
[15] The next development came in 2021. Joscelyn and Robert wanted to purchase a new car and sought to increase the mortgage to enable them to do so. At the same time, an opportunity arose to refinance the mortgage at a better rate of interest. Both the increase in the loan and the refinancing required Daniel and Georgia’s consent. Georgia’s name was still on the title and mortgage, though by then she had moved to Australia. The need to make changes to the mortgage provided the impetus the parties needed to address Georgia’s position.
[16] On 29 June 2021, the four owners signed a deed of property transfer. Georgia transferred her one-eighth share to Daniel, Robert and Joscelyn equally. In consideration for doing so she was released from any liabilities with respect to the property.
[17] The first clear sign of disharmony between Daniel and his parents came around the same time. Daniel maintains, and I am obliged to accept Daniel’s account for these
purposes, that the parties always intended his share of the property would increase over time in return for his contribution to the mortgage and the other outgoings.
[18] In evidence, Daniel said that in July 2021 the parties took the opportunity, when they refinanced the loan, to rebalance their respective shares. After Georgia’s share had been redistributed, Daniel owned 16.66 per cent of the property, while his parents owned 41.6 per cent each. Daniel told his parents he would not agree to the refinancing, or the $40,000 increase they wished to secure, unless they agreed to increase his share to 50 per cent.
[19] Joscelyn and Robert agreed. On 19 July 2021 the title was amended to show Daniel holding a 50 per cent interest in the property, while Joscelyn and Robert’s share decreased to 25 per cent each. The refinanced mortgage was increased by $40,000 to allow Joscelyn and Robert to buy their new car.
[20] Daniel’s consent to the $40,000 increase was the only consideration he provided for the dramatic increase in his ownership interest. He maintains consideration was unnecessary, as the change was simply the deal unfolding as agreed. Nonetheless, Daniel acknowledged he received a greater increase in his share than his parents had offered him, and that he refused to sign the necessary documents until they agreed to his terms.
[21] It appears relations between Daniel and his parents deteriorated from there. By early 2022, Daniel indicated he wanted to sell his share in the property. He had a new partner and they were ready to get a place of their own. Given property prices were buoyant at the time, Daniel considered it an ideal time to sell up and divide the proceeds, or for Joscelyn and Robert to purchase Daniel’s share.
[22] Daniel gave evidence that in early 2023 he and his parents agreed to put the property on the market no later than that May. In February 2023, Daniel and his new partner moved out. Daniel continued paying his share of the mortgage and the other outgoings.
[23] Then, according to Daniel’s evidence, Joscelyn and Robert reneged on the agreement to sell the property, and also declined to engage with Daniel about buying him out. On 14 June 2023, Daniel stopped contributing to the mortgage and the other outgoings, leaving Joscelyn and Robert to meet those expenses in full.
[24] Daniel gave evidence that the balance of the mortgage, as at the date of the hearing, was $590,033.30.
The application
[25] Daniel seeks an order for the sale pursuant to s 339 of the Property Law Act 2007. He also seeks a series of directions, under s 343(d), about the distribution of the proceeds, and asks for incidental orders to facilitate the process.
[26] Daniel acknowledges his parents are entitled, as the first distribution once the property is sold, to the return of their initial capital contribution of $157,898.10. From that, Daniel asks me to deduct $40,000 reflect the 2021 increase in the mortgage which was for his parents’ sole benefit. Daniel also asks for an order that his parents pay occupation rent covering the period between 1 February 2023 and 14 June 2023; that period covers the four and a half months when Daniel was no longer living at the property but was contributing to the mortgage. He seeks occupation rent at $315 per week, or a total of $5,985.00.
[27] Daniel does not agree his parents are entitled to any credit for the $55,231.64 they paid in 2019 to clear his and Georgia’s debts. It appears he asks me to characterise that payment as a gift from Joscelyn and Robert to Georgia, and to a lesser extent to Daniel himself.
The law
[28]The Property Law Act relevantly provides:
339 Court may order division of property
(1)A court may make, in respect of property owned by co-owners, an order—
(a)for the sale of the property and the division of the proceeds among the co-owners; or
(b)for the division of the property in kind among the co-owners; or
(c)requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.
(2)An order under subsection (1) (and any related order under subsection (4)) may be made—
(a)despite anything to the contrary in the Land Transfer Act 2017; but
…
(d)only after having regard to the matters specified in section 342.
…
(4)A court making an order under subsection (1) may, in addition, make a further order specified in section 343.
(5)Unless the court orders otherwise, every co-owner of the property (whether a party to the proceeding or not) is bound by an order under subsection (1) (and by any related order under subsection (4)).
…
342Relevant considerations
A court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:
(a)the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:
(b)the nature and location of the property:
(c)the number of other co-owners and the extent of their shares:
(d)the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:
(e)the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:
(f)any other matters the court considers relevant.
343Further powers of court
A further order referred to in section 339(4) is an order that is made in addition to an order under section 339(1) and that does all or any of the following:
(a)requires the payment of compensation by 1 or more co-owners of the property to 1 or more other co-owners:
(b)fixes a reserve price on any sale of the property:
(c)directs how the expenses of any sale or division of the property are to be borne:
(d)directs how the proceeds of any sale of the property, and any interest on the purchase amount, are to be divided or applied:
(e)allows a co-owner, on a sale of the property, to make an offer for it, on any terms the court considers reasonable concerning—
(i)the non-payment of a deposit; or
(ii)the setting-off or accounting for all or part of the purchase price instead of paying it in cash:
(f)requires the payment by any person of a fair occupation rent for all or any part of the property:
(g)provides for, or requires, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under section 339(1).
[29] It follows the Court has a broad discretion not only to order a sale, but to direct that the proceeds are applied in a way that is substantively fair to all parties. Section 343 permits further orders which will ensure, if the property is sold, that Joscelyn and Robert recover their capital contributions while they and Daniel share the balance. In making such an order, I am not bound by the contributions Daniel recognises.
Discussion
Sale order
[30] In some respects, the fact the case is proceeding by way of formal proof makes my task easier. There are no contested questions of fact to resolve. Nonetheless, I have taken into account each of the factors set out in s 342, and have examined whether the evidence shows that an order for sale should be made.
[31] To my surprise, Mr Bellamy appeared on Joscelyn and Robert’s behalf at the formal proof hearing. He was unable to explain why they decided to disengage from the proceeding, and acknowledged he is now unable to challenge Daniel’s evidence. Nonetheless, he asked me to consider both the legal position, as evidenced by the certificate of title, and what the uncontested evidence reveals about the parties’
respective positions in equity. In particular, Mr Bellamy noted the large imbalance in contributions by Joscelyn and Robert on one hand and Daniel on the other.
[32] Mr Bellamy undoubtedly has a point in that regard. The parties have paid down the mortgage by around $66,000 over five years. It is clear, given he has not been contributing over the last 17 months, that Daniel is responsible for less than half that reduction. Even if it could be said that Daniel had contributed $30,000 towards the equity he and his parents have accrued in the property, that sum is dwarfed by the net contributions of Joscelyn and Robert, which included $158,000 towards the initial purchase and a further $55,000 in payment of Daniel and Georgia’s debts.
[33] The difficulty for Mr Bellamy, however, is that a property’s legal title provides the starting point when analysing beneficial ownership. The law presumes the legal title reflects the parties’ mutual intentions, and accordingly their beneficial interests. While that presumption can readily be displaced by other evidence, Joscelyn and Robert’s disengagement from the proceeding meant they filed no evidence contesting Daniel’s account, and they are now barred from doing so.
[34] Cossey v Bach was similar in many respects to the present case. The case concerned a house owned by a (formerly married, then divorced, then reconciled) couple. The plaintiff provided the entire purchase price but allowed the property to be put into his and the defendant’s joint names. The renewed relationship lasted only 14 months. Justice Fisher observed:4
The starting point still appears to be the legal title. In this case the title stands in the joint names of both partners. Without more, it may be assumed the way in which the parties had organised their legal title was intended to reflect their underlying beneficial interests. It is for the party who seeks to rebut that inference to affirmatively establish the case for doing so: Gissing v Gissing … That approach must apply with at least as much force to a joint owner who seeks more than the half interest to which he or she would be entitled on the strength of the legal title. In the discussion which follows, it may be assumed that in principle a joint owner seeking more than a half-share is in the same position as a non-owner seeking to establish any interest at all. Both must show affirmatively why the legal title should not be taken to reflect the underlying beneficial interests.
4 Cossey v Bach [1992] 3 NZLR 612 (HC) at 627 citing Gissing v Gissing [1971] AC 886 (HL) at 900 and 902. In text citations omitted.
[35] Justice Fisher went on to discuss the appropriate approach where there is evidence the legal title does not reflect the parties’ intentions. It is unnecessary to rehearse the complexities which might have followed if Joscelyn and Robert had tendered evidence they did not intend Daniel to receive a beneficial interest of 50 per cent. Because this case has proceeded by way of formal proof, there is simply no evidence capable of displacing the presumption that the legal title reflects the three owners’ underlying beneficial interests. I have no alternative but to accept there was a common intention that Daniel would legally and beneficially own 50 per cent of the property.5 The size of Daniel’s share, combined with the collapse of the parties’ relationship, points strongly towards an order for sale.
[36] The property is a pleasant house in a good location which has gained in value since the parties bought it. While it is Joscelyn and Robert’s family home, they have not tendered evidence of any particular attachment to the house, or of any hardship they might experience if an order for sale were made. Property prices have moderated since the peaks of early 2022, but there appears little doubt the parties would share a healthy capital gain if the house were sold. On the other hand, if the property were not sold, Daniel would be deprived of the opportunity to put his share of the equity towards another home.
[37] In light of those factors, I have no hesitation in concluding an order for sale should be made. Daniel is a joint owner of the property. It is reasonable for him to terminate the joint arrangement, extract his equity from the property and look to buy a home of his own. While it is relatively rare for parents and their children to fall out so disastrously, relationship breakdowns between joint owners are all too common. The law has never insisted they should be forced to endure a dysfunctional joint title indefinitely. The ordinary remedy, and the appropriate next step, is an order for sale so the parties can move on.6
[38] Joscelyn and Robert appear to have reached the same conclusion in the first half of 2023. They agreed to buy Daniel out, and that agreement prompted Daniel and
5 Whimp v Bigham [2016] NZHC 1261 at [12]; and Fuller v Smeets [2013] NZHC 1284 at [15].
6 See Whimp v Bigham, above n 5, at [12]; and Fitzgerald v Smith [2024] NZHC 951 at [29].
his new partner to move. It appears Joscelyn and Robert then changed their minds for reasons they have not explained.
[39] Given Joscelyn and Robert are still living in the property, and apparently do not wish to move out, I am not prepared to make an order for sale without giving them a final chance to purchase Daniel’s share. In accordance with usual practice, and before the property is placed on the open market, Joscelyn and Robert will have the opportunity to buy Daniel’s share in accordance with the formula I discuss in more detail below.
Division and application of purchase price
[40] As noted above, Daniel recognises his parents are entitled to the return of their initial investment of $157,898.10, but contends that is the only credit they should receive. He argues his parents should not be entitled to recover the sums they advanced to clear his and Georgia’s debts in 2019. He argues his parents should be fully liable for the $40,000 increase in the mortgage in 2021, and that they should be obliged to pay occupation rent for much of the first half of 2023.
[41] I do not accept Daniel’s submission that the clearance of his and Georgia’s debts in 2019 should be disregarded. That payment was, in substance, a capital contribution which enabled the purchase to proceed. Daniel’s suggestion the debt clearance was essentially a private matter between Georgia and his parents disregards the reality of the transaction. Even if most of the debts were originally incurred by Georgia, Joscelyn and Robert paid them off to ensure Daniel would be able to participate in the purchase. The debt-clearance of $55,231.64 is properly regarded as part of Joscelyn and Robert’s initial capital outlay alongside the $157,898.10 which went directly towards the purchase.
[42] Similarly, I consider there is no case for Daniel to receive occupation rent for the four-month period between his departure from the property and the cessation of his mortgage contributions. While there may have been a case for rent if he had continued to contribute to the mortgage,7 Daniel acknowledged he is seeking half the
7 See Jacobson v Guo HC Auckland CIV-2008-404-526, 2 September 2008.
equity his parents have built up over the 17 months since he stopped contributing. In response to questions from me, he agreed the payments Joscelyn and Robert made after assuming full responsibility for the mortgage more than offset any rent which might have been due between February and June 2023. Accordingly, I do not consider it would be in the interests of justice, or fair to Joscelyn and Robert, to require them to pay the occupation rent Daniel seeks.
[43] That leaves the $40,000 extension of the mortgage to which the parties agreed in 2021. That money was used by Joscelyn and Robert to buy a new car, and Daniel says repayment of that part of the mortgage should be his parents’ sole responsibility.
[44] I do not consider the evidence supports that conclusion. In mid-2021, when Joscelyn and Robert sought the extra $40,000, Daniel owned one-sixth of the property and his parents held the remaining five-sixths between them. Daniel accepts he refused to sign the documents approving the extension of the mortgage, or the refinancing, until his parents agreed to increase his share from one-sixth to one half.
[45] Even acknowledging there was a broad arrangement that Daniel’s share in the property would increase over time, there is no evidence the process by which that would occur, or the speed and scale of the change, had been agreed until the holdings were redistributed in 2021. I asked Daniel when he and his parents had agreed his share should increase to 50 per cent. He replied:
It was during the process of when we were removing Georgia from the property and my parents borrowing that extra for the car, that we agreed that when we were to remove Georgia that we would divide the property fifty-fifty just to make it even and clean.
[46] Georgia’s removal from the title and the refinancing occurred around three weeks apart. It is clear there was no agreement to increase Daniel’s share to 50 per cent when Georgia was removed — Daniel and his parents each took a third of Georgia’s share, and Daniel’s overall share did not increase substantially.
[47] The major change came when Daniel and his parents refinanced the loan and borrowed the extra $40,000. Daniel said he believed, when he attended the solicitors’ office to sign the relevant documents, that his share would increase to half. Instead,
he said he was presented with paperwork which would have resulted in his parents and him owning a third of the property each.
[48] While an increase from one-sixth to one-third would still have represented a considerable improvement in Daniel’s position, he gave evidence he withheld his consent until his parents agreed his share would increase to 50 per cent. It follows there was no consensus about how far or fast Daniel’s interest would increase until the discussions about the extension and refinancing. It is also clear Daniel drove a hard bargain.
[49] Daniel’s interest in the property tripled overnight. His consent to the extension (and the mutually beneficial refinancing) was the only consideration he provided. In exchange for his agreement to the loan extension, he received a significant increase in his share.
[50] If the $40,000 of additional borrowing were shared equally between Daniel and his parents, Daniel would be out of pocket by $20,000. That sum is more than offset by the equity he acquired when his share in the property increased so dramatically. Put another way, Daniel seeks an order requiring his parents to refund the only consideration he provided when his share in the property increased by a factor of three. That outcome would be unconscionable, and I decline to order it.
[51] I have not attempted to reconstruct the actual contributions made by Daniel and his parents during the period they were both contributing to the mortgage. Joscelyn and Robert have chosen not to tender any evidence capable of rebutting Daniel’s assertion that contributions were roughly even.
[52] As a final observation, it is fair to note that Joscelyn and Robert have been greatly disadvantaged by their decision to disengage from the proceeding. With the exception of the circumstances surrounding the 2021 rebalancing, on which I heard directly from Daniel, the fact the case proceeded by formal proof means there is no room for doubt or dispute about the mutual intentions of the parties when they entered the arrangement.
[53] I am acutely aware my orders will have a profound effect on Joscelyn and Robert’s economic interests, and may result in their house being sold from under them. But that outcome is the inevitable consequence of their withdrawal from the proceedings, and their decision not to contest Daniel’s claim or the evidence he filed in support.
[54] It was also unwise for Daniel and his parents to enter an agreement of this kind without committing their expectations to writing, and recording how they intended the ownership of the property to change over time.
Orders
[55]I make the following orders:
(a)Within 28 days of the issue of this judgment, Daniel is to obtain a registered valuation of the property at 1 Turner Place, Wakefield and serve it on Joscelyn and Robert.
(b)Within 14 days of receiving the valuation, Joscelyn and Robert may make a formal offer to purchase Daniel’s share using the valuation as the purchase price of the property. If Joscelyn and Robert exercise that option, and Daniel accepts the offer, Daniel’s share of the property is to be purchased and transferred to Joscelyn and Robert in accordance with para (e) below.
(c)If Joscelyn and Robert do not accept the valuation Daniel tenders they may obtain their own registered valuation and serve it on Daniel. If Joscelyn and Robert wish to exercise this option, they are to give notice to Daniel’s solicitor within 14 days of receipt of Daniel’s valuation, and serve their own valuation on Daniel within a further 14 days.
(d)Upon receipt of Joscelyn and Robert’s valuation, Daniel must offer to sell his share of the property to his parents for purchase price no greater than the average of the two valuations. If Joscelyn and Robert accept that offer, Daniel’s share of the property is to be transferred to them in
accordance with para (e) below.
(e)Purchase of Daniel’s share is to be effected by Joscelyn and Robert paying Daniel a sum calculated as follows:
(i)From the purchase price, the parties are to deduct:
(1)The outstanding balance of the mortgage; and
(2)$213,129.74 (comprising Joscelyn and Robert’s initial capital contribution plus the sums paid clearing Georgia and Daniel’s pre-purchase debts).
(ii)The resulting sum is to be divided by two. As an example, if the agreed purchase price were $960,000, and the outstanding mortgage balance $590,000, Joscelyn and Robert would be obliged to pay Daniel $78,435.13 to buy him out.8
(iii)The parties are jointly liable for any incidental costs of the sale, including the payment of solicitors’ fees.
(f)If Joscelyn and Robert do not agree to purchase Daniel’s share of the property in accordance with paras (a) to (d) above, the property must be sold on the open market with vacant possession. In that event, and for the purposes of sale, Joscelyn and Robert’s share in the property is to be vested in Daniel pursuant to s 350A of the Property Law Act. Joscelyn and Robert (on the one hand) and Daniel (on the other) are to contribute equally towards payment of the mortgage, rates and insurance from the date the property vests in him.
(g)Daniel must engage Summit Real Estate to act as the vendor’s real estate agent in selling the property, including signing the listing agreement and any other documents necessary for the marketing and sale of the property.
8 $960,000-$590,000-$213,129.74=$156,870.26. $156,870.26/2=$78,435.13.
(h)The property is to be sold for no less than its reasonable market value.
(i)Joscelyn and Robert may remain in occupation of the property throughout the sale period, but are to co-operate with all aspects of the sale process including (without limitation), keeping the property clean, tidy and presentable for sale, and ensuring reasonable access for viewing as the agent requires.
(j)Rout Milner Fitchett, solicitors, are to conduct all reasonably necessary conveyancing for the sale on behalf of the vendors, charging only such fees as are reasonable in light of the uncomplicated nature of the transaction.
(k)Direct sale costs, comprising the mortgage, real estate agent’s fees and the solicitor’s legal fees on the conveyancing, together with any outstanding rates and utilities, are to be deducted from the gross sale proceeds.
(l)The net proceeds of sale will be held in the trust account of Rout Milner Fitchett, solicitors, and distributed to the parties in accordance with paragraph (e) above.
[56]I make no order for the payment of occupation rent.
Costs
[57] Daniel has been largely, but not completely, successful. He has been assisted considerably by Joscelyn and Robert’s decision not to engage with the proceedings. That said, the fact Daniel was obliged to resolve the matter through the courts, rather than by sensible and pragmatic co-operation, means he has incurred significant expense. He is entitled to costs on a 2B basis, though it is appropriate to discount his award to reflect the fact he unsuccessfully sought to avoid responsibility for his parents’ payment of his and Georgia’s debts in 2019, sought to recover the only consideration he provided for the increase in his share from one-sixth to one half and unsuccessfully sought occupation rent.
[58] I consider Daniel’s contention that Joscelyn and Robert should accept a complete capital loss of the sums they advanced on his and Georgia’s behalf in 2019 to have been an unreasonable position, and one he should not have pursued. It is appropriate to discount Daniel’s award by 35 per cent to reflect the matters on which he was unsuccessful.
[59] I make an award of costs in Daniel’s favour on a 2B basis in accordance with the schedule his counsel supplied, reduced by 35 per cent, making a final award of
$13,943.15. I certify for $2,382 in disbursements as sought.
Boldt J
Solicitors:
Rout Milner Fitchett, Nelson for Applicant
Philip Bellamy, Barrister, Nelson for Respondents
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