TURNER v GOLDSBURY [2023] NZHC 179

TURNER v GOLDSBURY [2023] NZHC 179

Applying s 342 factors the Court concluded they weighed against partition: the cross-lease and its arbitration mechanism provided an existing, workable means to resolve disputes; an arbitrator had found the defendants' refusal reasonable; the prejudice to defendants from losing cross-lease rights outweighed the applicants' hardship; accordingly the Court declined to exercise its discretion to order partition.

Citation
[2023] NZHC 179
Parties
First Plaintiff: Warren Austin Turner; First Plaintiff: Linda Christine Turner; First Plaintiff: Geoffrey Malcolm Bilkey; Second Plaintiff: Suzanne Lesley Wardlaw; Second Plaintiff: Deryck Andrew Wardlaw; Second Plaintiff: Christopher James Faber Waters; Second Plaintiff: Melissa Lea Wardlaw; First Defendant: Kelvin Glen Goldsbury; First Defendant: Christine Joy Nightingale; First Defendant: Onehunga Trustee Company Limited; Second Defendant: CCCK Investments Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 February 2023
Procedural Posture
Property Law Act S 339 Partition Application / Judgment (high Court)
Outcome
Application for partition dismissed
Legal Topics
Partition Order, Cross Lease Disputes, Arbitration, Consent to Alterations, Hardship
Property Law Real Property Civil Procedure Partition Order Cross Lease Disputes Arbitration Consent to Alterations Hardship

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Parties

Warren Austin Turner

First Plaintiff

Linda Christine Turner

First Plaintiff

Geoffrey Malcolm Bilkey

First Plaintiff

Suzanne Lesley Wardlaw

Second Plaintiff

Deryck Andrew Wardlaw

Second Plaintiff

Christopher James Faber Waters

Second Plaintiff

Melissa Lea Wardlaw

Second Plaintiff

Kelvin Glen Goldsbury

First Defendant

Christine Joy Nightingale

First Defendant

Onehunga Trustee Company Limited

First Defendant

CCCK Investments Limited

Second Defendant

Procedural Posture

Property Law Act S 339 Partition Application / Judgment (high Court)

Legal Issues

  1. 1 Whether to order partition under s 339(1)(b) of the Property Law Act 2007
  2. 2 Application of s 342 factors in deciding partition
  3. 3 Effect of existing cross-lease and prior arbitration on entitlement to partition

Ratio Decidendi

Applying s 342 factors the Court concluded they weighed against partition: the cross-lease and its arbitration mechanism provided an existing, workable means to resolve disputes; an arbitrator had found the defendants' refusal reasonable; the prejudice to defendants from losing cross-lease rights outweighed the applicants' hardship; accordingly the Court declined to exercise its discretion to order partition.

Court Disposition

Application for partition dismissed

Orders

  • Application dismissed
  • The Goldsburys are the successful party; parties are urged to agree costs