Wirepa v Wirepa - [2024] NZHC 587

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2023-463-000010

[2024] NZHC 587

UNDER
Senior Courts Act 2016 and the

Property Law Act 2007

AND

IN THE MATTER

of a statement of claim

BETWEEN

SILVANA LILIANA WIREPA

Applicant

AND

JEWELL MARINA WIREPA

First Respondent

ESTHER WILSON

Second Respondent

ANGELINA KINGI

Third Respondent

Hearing: 12 March 2024

Appearances:

N Robertson for Applicant

Judgment:

20 March 2024

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 20 March 2024 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

………………………………
Registrar/Deputy Registrar

Solicitors: Sanderson Weir Limited, Auckland

WIREPA v WIREPA [2024] NZHC 587 [20 March 2024]

Introduction

[1] The plaintiff, Ms Silvana Wirepa,1 applies for orders pursuant to s 339(1)(a) of the Property Law Act 2007 concerning a property at 8361 State Highway 35, Waihau Bay, Ōpōtiki.2

[2] The defendants to the claim were determined by directions of Associate Judge Taylor dated 21 April 2023 and they were served in accordance with directions as to service then made.3 The defendants have not taken any formal steps in this proceeding. On application by Silvana, the matter was set down for formal proof by Associate Judge Taylor on 12 February 2024.4 The matter came before me on 12 March 2024.

Formal Proof

[3]Rule 15.9 of the High Court Rules 2016 provides:

15.9 Formal proof for other claims

(1)This rule applies if, or to the extent that, the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, and the plaintiff seeks judgment by default for other than a liquidated demand.

(2)The proceeding must be listed for formal proof and no notice is required to be given to the defendant.

(3)After a proceeding is listed for a formal proof hearing, no statement of defence may be filed without the leave of a Judge granted on the ground that there will or may be a miscarriage of justice if judgment by default is entered, and on such terms as to time or otherwise as the Judge thinks just.

(4)The plaintiff must, before or at the formal proof hearing, file affidavit evidence establishing, to a Judge’s satisfaction, each cause of action relied on and, if damages are sought, providing sufficient information to enable the Judge to calculate and fix the damages.

1      As three of the people involved share a last name, I refer to them by their first names.
2      The Property.
3      Wirepa v Wirepa HC Auckland CIV-2023-463-10, 21 April 2023 (Directions minute one of Associate Judge Taylor).
4      Wirepa v Wirepa HC Auckland CIV-2023-463-10, 12 February 2024 (Directions minute two of Associate Judge Taylor).

(5)If the Judge before or at the formal proof hearing considers that any deponent of an affidavit filed under subclause (4) should attend to give additional evidence, the Judge may direct accordingly and adjourn the hearing for that purpose.

[4] Rule 15.9 provides a mandatory procedure.…

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 Wirepa v Wirepa

Details

AGLC: Wirepa v Wirepa [2024] NZHC 587
Case: [2024] NZHC 587
Decision Date: 20 March 2024

CaseChat Overview and Summary

The case of Wirepa v Wirepa involved an application by Silvana Liliana Wirepa seeking orders for the sale of a property located at 8361 State Highway 35, Waihau Bay, Ōpōtiki, under section 339(1)(a) of the Property Law Act 2007. The defendants were Jewell Marina Wirepa, Esther Wilson, and Angelina Kingi, who did not take any formal steps in the proceeding. Silvana sought the sale due to the inability to complete a voluntary sale owing to the vacancy in the administration of her uncle Ivan Wirepa’s estate. The court had to decide whether an order for the sale of the property was appropriate and, if so, what form the orders should take.

The legal issues centred on whether the court should grant an order for the sale of the property given the circumstances and the relevant considerations under section 342 of the Property Law Act. The court considered factors such as the extent of Silvana’s ownership, the nature and location of the property, the number of other co-owners and their shares, the hardship caused to Silvana if the sale was not ordered, contributions made by co-owners to the property, and any other relevant matters. The court also needed to decide the form of the orders for sale, including the method of sale, the appointment of a real estate agent, the minimum acceptable offer, and the distribution of proceeds from the sale.

The court found that an order for the sale of the property was appropriate. Silvana held a significant majority share (17/24) and was supported by Jewell, who held a 3/24 share, making up a combined 85 per cent of the property. The remaining share (1/6) was held by the estate of Ivan Wirepa, which had a vacancy in the administration. The property was largely steep, covered in shrubs and trees, and not tenantable due to non-compliance with Healthy Homes standards and an encroachment issue. Silvana had made significant contributions to the property, including renovations and maintenance, without support from other co-owners. She faced financial and mental hardship by continuing to own the property and desired to focus on her own legal and financial issues in Australia. The court concluded that a sale would be in the best interests of all parties involved.

The court ordered the property to be sold by private treaty after a marketing campaign of no less than four weeks, with Debra Gibbons of McDowell Real Estate appointed as the real estate agent. The sale was to be accepted if the offer was not less than $300,000. Silvana was authorised to sign all necessary documents on behalf of all co-owners. The proceeds from the sale were to be disbursed in payment of expenses, outgoings, legal costs, and Silvana’s contributions before the balance was divided according to ownership interests. If no administrator was appointed to Ivan’s estate by the time of sale, his share was to be paid to the High Court or a solicitor as stakeholder. The court reserved leave to apply for variation of the orders.

Orders