12 Jul 2023
Because the defendant failed to advance any arguable defence and the plaintiffs satisfied the court on the s 342 factors, the Court exercised its (restrictive) discretion under r 12.2 and s 339 Property Law Act 2007 to order sale of the farm and to authorize the plaintiffs to effect the sale and allocate proceeds as ordered.
1 Dec 2021
The Court refused to reopen the fundamental interim determination that sale by auction was the appropriate remedy under s 339; it held that only the previously reserved mechanistic aspects of the sale could be finalised, declined to order a soil characterisation report or grant a two year lease renewal or restraint on Martin's ability to purchase Watercare land, and made detailed ancillary orders to implement sale by auction.
5 Jul 2021
The Judge did not err in exercising discretion to order sale by public auction rather than partition or a court‑ordered compulsory purchase; partition was impractical due to irreconcilable differences and practical obstacles, the applicant had earlier proposed auction and affidavit evidence did not support inability to relocate, valuations relied on were outdated and would unfairly advantage applicant, and no May v May ground for appellate intervention was made out.
13 Feb 2020
The 22 December 2009 document did not create an enforceable exclusive right to subdivide or to own the rear land because there was no consideration and any parental promise was extinguished by the mother's death and disposition of her estate; applying s 342(1) the balance of hardship and the ownership shares favoured ordering sale; the defendant was given a defined buy-out opportunity with a timetable and valuation process, was ordered to account for and pay occupation rent from 1 May 2016 to 17 February 2020 (specified totals) with ongoing rent at $200/week until settlement or vacancy, and t…
5 Dec 2019
Although the transfer and subdivision did not comply with Māori land statutory requirements (no partition order under the Māori Land Court process, no shareholders' resolution, and improper affixing of the incorporation seal), the transfer was registered under the Land Transfer Act and the transferee obtained an indefeasible title. There was no evidence the transferee had notice of statutory defects or acted unconscionably; advisers and officials involved held the view partition was not required and the transfer proceeded transparently. Consequently equitable remedies (resulting trust/unjust…
10 May 2019
The Court ordered partition because Kid Country would suffer appreciably greater hardship from refusal (reliance on apparent agreement, substantial borrowing, lack of income from the unit and granted resource consents) than the hardship to Mr Hoy from making the order; factual findings supported that Kid Country reasonably believed Mr Hoy agreed in principle prior to purchase and the parties were at an impasse incompatible with a cross‑lease, satisfying the s 342 considerations overall.
29 Nov 2018
The court ordered the subdivision because evidence (including resource consents, survey and valuation evidence) established the proposed boundary reflected the parties' prior agreement, produced lots of roughly equal area and value consistent with their equal shares, satisfied the s342 considerations and was just; the existence or expiry of the partnership did not prevent the court exercising its s339 power.
1 Sept 2017
Summary judgment on the partition application was declined because s 339 confers a wide judicial discretion requiring assessment of comparative hardship, contractual and equitable considerations, and practical consequences; genuine factual and equitable disputes (existence of deadlock, potential loss of cross-lease protections, issues of unclean hands, and feasibility and fairness of proposed partition) made summary determination unsafe and a full hearing or alternative dispute resolution was required.
10 May 2017
The court ordered sale under s339(1)(a) because the majority co-owner had been deprived of any benefit from his majority interest for over eight years while the defendant had sole occupation and received rents; the defendant's mortgage payments were treated as the price paid to acquire her 29% interest and thus were not deductible against the plaintiff's 71% share; the plaintiff was ordered to pay $7,000 compensation for damage to the electrical supply (deducted from his share); a registered valuation is to be obtained, the defendant given 30 days to buy the plaintiff's share at market value,…
5 Oct 2016
The Court ordered immediate sale and equal division of net proceeds because, applying s 342, the applicant's entitlement to realise her long‑denied half-share and the refusal of the defendant to purchase or cooperate meant the hardship to the applicant from refusal of sale outweighed the hardship to the defendant; incidental orders were necessary to effect sale where the defendant refused to cooperate.