BERGIN v MARTIN [2015] NZHC 332

BERGIN v MARTIN [2015] NZHC 332 [3 March 2015]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCIV-2014-454-137[2015] NZHC 332IN THE MATTER OF sSection 339 of the Property Law Act 2007BETWEEN NATALIE CATHERINE BERGINPlaintiffAND JAMES ERNEST MARTINDefendantHearing: 26 February 2015Appearances: T Manktelow for plaintiffNo appearance for defendantJudgment: 3 March 2015JUDGMENT OF CLIFFORD J[1] This is an application on notice by the plaintiff, Natalie Bergin, for an order under s 339 of the Property Law Act 2007 for the sale of a property at 445 Green Road owned jointly by her and the defendant, James Martin. At the same time, Ms Bergin applies on notice for the Public Trustee to be appointed as manager of Mr Martin's property in New Zealand under s 99 of the Public Trust Act 2001.[2] Following the hearing of this application on 26 February 2015, I indicated in open Court that I had concluded it was appropriate to make the order sought under s 399 of the Property Law Act, but that I had reservations as to my jurisdiction to make the order sought under s 99 of the Public Trust Act. I said I would provide my reasons in writing later. I now do so, including as to why I have now concluded that I do have jurisdiction to, and should, make an order appointing the Public Trustee manager of Mr Martin's property.[3] Section 339 of the Property Law Act provides, amongst other things, for the Court to make an order for the sale of property owned by co-owners and the division of the proceeds of that property among the co-owners. The discretion given to the Court under s 339 is a wide one. Section 342 provides that, when considering whether to make an order under s 339(1) and any related order under s 343 pursuant to which the Court may make orders relating to the terms upon which the property is to be sold, the Court must have regard to the following considerations:(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.[4] Ms Bergin applies to the Court against the background of the following facts, set out in the affidavit sworn by her in support of this application.[5] Ms Bergin was in a de facto relationship with Mr Martin from early 1998 until August 2002 when, without prior notice and to her dismay, he left her. There are no children of the relationship.[6] In November 1999 Ms Bergin and Mr Martin together bought a property at 445 Green Road, Kopane. The title shows them each holding a half share. In December of that year they entered into a property agreement that provided that, if either of them wanted to sell the property, the other had an option to purchase. If that option was not exercised, the property was to be sold and the proceeds divided equally, except for some $9,000 which was to be paid to Mr Martin – acknowledging the deposit he had provided for the purchase of the house.[7] Since 2002, when Mr Martin left Ms Bergin and went to Australia, Ms Bergin has had no further contact with Mr Martin. This is not withstanding efforts she has made to trace him.[8] In 2014 Ms Bergin fell ill with melanoma. She has subsequently had surgery, and hopes to make a full recovery.[9] Ms Bergin now lives with her eldest daughter. In order to maintain the mortgage, she has since March 2014 rented out the Green Road property to tenants. Ms Bergin has deposed that it has, however, taken a lot longer for her to recover than she had hoped, and that she has concluded she now has no choice but to sell the property.[10] With that in mind, Ms Bergin again recently made efforts to contact Mr Martin. As before, they were unsuccessful.[11] At the outset of these proceedings, interlocutory orders were made dispensing with personal service on Mr Martin and providing for substituted service by advertisement in Australian and New Zealand newspapers. That substituted service has been undertaken, and no response has been received from Mr Martin.[12] In these circumstances, I consider it is appropriate to make the order sought. In reaching that conclusion, I have had regard to each of the relevant considerations set out in s 342. In doing so, I do think that hardship would be caused to Ms Bergin by a refusal of the order. In terms of any other relevant matters, I think the terms of the property agreement between Ms Bergin and Mr Martin are also a relevant consideration: if Mr Martin was still contactable, Ms Bergin would have a contractual right to achieve the sale of the property which she now asks the Court to give effect to under s 339. I also note the extensive, but unsuccessful, efforts to contact Mr Martin and the proposal that the Public Trust be appointed as manager ofMr Martin's personal property in New Zealand so that the Public Trust can represent his interests in terms of the way in which the property is marketed and sold, and can hold the proceeds for him once sale has been achieved.[13] There will therefore be an order as sought under s 339 of the Property Law Act for the sale of the Green Road property. In terms of s 343 of that Act, that sale is to be undertaken in the manner agreed between Ms Bergin and the Public Trust, and the proceeds to be divided in the manner provided for in the December 1999 property agreement, save that costs in connection with these proceedings, calculated on a 2B basis, may first be deducted from the proceeds.[14] In making those orders I note that the Property (Relationships) Act 1976 does not apply here. In that regard, see ss 21P and 21R of that Act.[15] As noted, Ms Bergin has also applied for the appointment of the Public Trust as manager of Mr Martin's real and personal property in New Zealand. In terms ofs 99(1)(a) and (b) I am satisfied that, after due inquiry, it is not known where Mr Martin is, and in fact whether he is alive or dead and that, further, it is not known whether he has any agent or administrator in New Zealand to administer the property. Rather, every indication is that he does not.[16] On that basis, I have also concluded it is appropriate that the Public Trust be appointed as manager accordingly.[17] When I heard this matter on Thursday 26 February I was concerned that, with reference to s 100 of the Public Trust Act, such an application could only be made ex parte by the Public Trustee. On reflection, I am of the view that s 100 enables the Public Trustee, on an ex parte basis, to make application to be appointed as a manager. It does not preclude applications on notice by other persons.[18] Accordingly, there is also an order as sought that under s 99 of the Public Trust Act the Public Trustee be appointed manager of Mr Martin's property in NewZealand.[19] As noted, there is an order for costs in favour of Ms Bergin, on a 2B basis, as regards these proceedings."Clifford J"Solicitors:Innes Dean Tararua Law, Palmerston North for plaintiff.