JOONG SEOK KO AND YOUN JA KIM V P J H CHAMBERLAIN, K C GOLDSTONE, N J PORTER AND A J STEELE AND ORS HC AK CIV 2006-404-3279

JOONG SEOK KO AND YOUN JA KIM V P J H CHAMBERLAIN, K C GOLDSTONE, N J PORTER AND A J STEELE AND ORS HC AK CIV 2006-404-3279

The court held that co-owners of cross-leased land remain entitled to the statutory right to partition; cross-lease titles and interlocking leasehold/freehold obligations do not of themselves oust the statutory right absent clear express contracting-out; accordingly the plaintiffs were entitled to an order declaring the court will order partition of the property, subject to the form of partition and the obtaining of requisite resource/subdivision consent, with matters of detailed form and value adjustments reserved for further proceedings.

Citation
openlaw-7656a408_6b75_46fc_91af_768d2fd5aa3b.pdf
Parties
Plaintiffs: Joong Seok Ko and Youn Ja Kim; First Defendant: Peter James Hugh Chamberlain; First Defendant: Kerry Charles Goldstone; First Defendant: Nicholas James Porter; First Defendant: Andrew James Steele; Second Defendant: Frances Patricia Slater; Second Defendant: Jacqueline Merle Cassidy; Second Defendant: Jack Holbrook; Third Defendant: Alexander Barclay; Third Defendant: Margaret Adelaide Barclay; Fourth Defendant: David Anthony Collins; Fourth Defendant: Stephen James Tee; Fifth Defendant: Ridgway Empire Ltd; Sixth Defendant: ANZ National Bank Ltd; Seventh Defendant: Bank of New Zealand; Eighth Defendant: ASB Bank Ltd; Ninth Defendant: Registrar-General of Land
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 May 2007
Procedural Posture
Partition Application Under Partition Acts / Summary Judgment Application on Partition Jurisdiction; Case Management Ordered
Outcome
Summary judgment granted in part: court declares plaintiffs have right to partition and orders that partition will be made subject to form to be determined and subject to obtaining requisite resource consent; matters of form, adjustments for unequal values and costs reserved.
Legal Topics
Partition, Cross Lease, Indefeasibility of Title, Subdivision/resource Consent, Waiver/contracting Out of Statutory Rights, Summary Judgment, Easements, Adjustment for Unequal Shares
Property Law Land Law Civil Procedure Conveyancing Partition Cross Lease Indefeasibility of Title Subdivision/resource Consent +4 more

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Parties

Joong Seok Ko and Youn Ja Kim

Plaintiffs

Peter James Hugh Chamberlain

First Defendant

Kerry Charles Goldstone

First Defendant

Nicholas James Porter

First Defendant

Andrew James Steele

First Defendant

Frances Patricia Slater

Second Defendant

Jacqueline Merle Cassidy

Second Defendant

Jack Holbrook

Second Defendant

Alexander Barclay

Third Defendant

Margaret Adelaide Barclay

Third Defendant

David Anthony Collins

Fourth Defendant

Stephen James Tee

Fourth Defendant

Ridgway Empire Ltd

Fifth Defendant

ANZ National Bank Ltd

Sixth Defendant

Bank of New Zealand

Seventh Defendant

ASB Bank Ltd

Eighth Defendant

Registrar-General of Land

Ninth Defendant

Procedural Posture

Partition Application Under Partition Acts / Summary Judgment Application on Partition Jurisdiction; Case Management Ordered

Legal Issues

  1. 1 Whether co-owners of cross-leased land have an absolute right to partition under the Partition Acts
  2. 2 Whether cross-lease structure and interlocking freehold/leasehold obligations legally preclude partition
  3. 3 Whether the summary judgment procedure is appropriate to determine partition and its form

Ratio Decidendi

The court held that co-owners of cross-leased land remain entitled to the statutory right to partition; cross-lease titles and interlocking leasehold/freehold obligations do not of themselves oust the statutory right absent clear express contracting-out; accordingly the plaintiffs were entitled to an order declaring the court will order partition of the property, subject to the form of partition and the obtaining of requisite resource/subdivision consent, with matters of detailed form and value adjustments reserved for further proceedings.

Court Disposition

Summary judgment granted in part: court declares plaintiffs have right to partition and orders that partition will be made subject to form to be determined and subject to obtaining requisite resource consent; matters of form, adjustments for unequal values and costs reserved.

Orders

  • Order that plaintiffs are entitled to partition 37 Clifton Road, Takapuna (Lot 5 DP 12781) in a form to be determined
  • Order that any partition is subject to obtaining requisite resource/subdivision consent