Wynyard v Rawiri - [2018] NZHC 2509

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2016-488-161 [2018] NZHC 2509

IN THE MATTER
of the Property Law Act 2007 Section 339 to

342

BETWEEN

JOSEPH HENRY WYNYARD Plaintiff

AND

TANIA ANNE RAWIRI First Defendant

PHILIP EDWARD RAWIRI Second Defendant

Hearing: 29 August 2018

Counsel:

DJ Blaikie for plaintiff
DGA Day for first defendant

Judgment:

25 September 2018

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 25 September 2018 at 3:00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Blaikie Law, Kaikohe
Law North, Kerikeri

Wynyard v Rawiri [2018] NZHC 2509 [25 September 2018]

Introduction

[1] Mr Wynyard (the plaintiff) and Ms Rawiri (the first defendant) were formerly in a de facto relationship and purchased a property together in September 1995, in which they lived. They each own (as tenants-in-common) 35 per cent of the property. The remaining 30 per cent is owned (again as a tenant-in-common) by Ms Rawiri’s brother, Mr Rawiri (the second defendant).

[2] Mr Wynyard and Ms Rawiri have been separated since 1997. Ms Rawiri has lived at the property since that time and now lives there with her partner and their daughter. Mr Wynyard wishes to realise his share in the property and applies under s 339 of the Property Law Act 2007 for the Court to divide the property among the co- owners. Mr Rawiri abides the decision of the Court. I therefore refer to Mr Wynyard and Ms Rawiri as “the parties” and refer to Mr Rawiri separately where relevant.

[3] Though the case as originally pleaded sought sale of the property with division of the proceeds between the owners, the parties have agreed that the more appropriate course is for Ms Rawiri to purchase Mr Wynyard’s interest. Accordingly, the sole issue for resolution in this judgment is the appropriate amount to be paid to the plaintiff for his share of the property.

Background

[4] The property was purchased in or around September 1995. Mr Wynyard and Ms Rawiri were not immediately able to satisfy lending requirements to obtain a mortgage, so Mr Rawiri, who was then in employment as a teacher, agreed to be included as a co-owner to enable mortgage finance to be obtained. The plaintiff and first defendant obtained a mortgage of $90,900 through the Housing Corporation of New Zealand. A deposit of $5,000 had been paid to secure the property.

[5] Mr Wynyard and Ms Rawiri lived at the property together with their infant son for approximately two years. Ms Rawiri attended teacher training during that time and Mr Wynyard worked part time in pest eradication. Both have given evidence that their separation was acrimonious and resulted in Mr Wynyard moving out of the property in 1997. It is agreed that he continued to make contributions towards the

mortgage, though Mr Wynyard says he did for approximately one year after separation, whereas Ms Rawiri says this occurred for only a…

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 Wynyard v Rawiri

Details

AGLC: Wynyard v Rawiri [2018] NZHC 2509
Case: [2018] NZHC 2509
Decision Date: 25 September 2018

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide how much Ms Rawiri should pay Mr Wynyard for his share of their jointly owned property, which they purchased together in 1995. The couple separated in 1997, and Ms Rawiri has lived in the property since that time. The court had to determine the fair market value of the property, the contributions made by each party to the mortgage, rates, insurance, and maintenance, and the value of any other relevant factors, such as improvements made to the property. The court also had to consider the principles of equity and fairness in determining the appropriate amount to be paid. The court ultimately determined that Ms Rawiri should pay Mr Wynyard $25,615.50 for his share of the property. This amount was calculated by taking into account the value of the property, the contributions made by each party, and other relevant factors such as interest on the outgoings and a general allowance for further expenses and justice as between the parties. The court also made orders for the transfer of Mr Wynyard’s share of the property to Ms Rawiri upon payment of the aforementioned sum, and reserved leave to the parties to apply for any further orders necessary to give effect to the judgment.

Orders