New Zealand Case Law: Decisions & Judgments | LexChat

New Zealand Case Law

S 339 property law act 2007

  • 25 Aug 2022

    RYAN v M & E RYAN & SONS LTD [2022] NZHC 2110

    Citation
    [2022] NZHC 2110
    Court
    High Court

    Summary judgment was dismissed because the 2009 Agreement is silent on the precise effect of any later subdivision, there are significant disputed facts about the parties' intentions and post-agreement conduct, absence of valuation evidence and admissible expert tax evidence, and an arguable entitlement of MER to compensation if its registered undivided share is reduced by a physical division; these matters require a full trial rather than summary disposal.

    • Partition of co-owned land
    • S 339 property law act 2007
    • Contract interpretation
    • Summary judgment
    • Compensation on partition
    • Expert evidence admissibility

  • 28 Mar 2022

    SMITH v ENDEAN [2022] NZHC 583

    Citation
    [2022] NZHC 583
    Court
    High Court

    Leave to file the Family Protection Act claim out of time was granted because the delay was relatively short (18 weeks), the applicant's mistaken but understandable reliance on her position as the sole discretionary beneficiary provided an excusable explanation, the claim that the deceased breached a moral duty to his long‑term spouse had sufficient merit to justify permitting the claim, and there was no material prejudice to beneficiaries who had ordered their lives on the will sufficient to defeat leave.

    • Family protection act 1955
    • Leave to extend time
    • Life interest
    • Relationship property
    • Executor duties
    • Trust beneficiaries

  • 16 Jul 2021

    LUNG v LIU [2021] NZHC 1810

    Citation
    [2021] NZHC 1810
    Court
    High Court

    Leave to commence by originating application was refused because the matter was not sufficiently straightforward on the papers: there was sparse documentary evidence of the alleged agreement, a real prospect of factual dispute and cross-claims, and probable need for oral evidence and cross-examination, making the originating application procedure inappropriate and unfair to the absent respondent.

    • Sale of property
    • Tenants in common
    • S 339 property law act 2007
    • S 342 property law act 2007
    • Originating application procedure (high court rules r19.5)
    • Leave to commence

  • 15 Sept 2020

    UBAID v UBAID - Costs [2020] NZHC 2397

    Citation
    [2020] NZHC 2397
    Court
    High Court

    The court exercised its discretion on an overview of the matter, concluded the parties' agreement and conduct did not establish one party as the clear successful party for costs, and ordered that costs lie where they fell; accordingly no award in favour of either party was made.

    • S 339 property law act 2007
    • S 342 property law act 2007
    • Sale of family home
    • Division of sale proceeds
    • Costs awards
    • Judicial discretion

  • 13 Aug 2020

    HEADLEY v HEADLEY [2020] NZHC 2052

    Citation
    [2020] NZHC 2052
    Court
    High Court

    Because the defendant did not oppose the application and the statutory criteria under s 339 were met, the Court made a consent order for sale including valuation, an option to the applicant's mother, a timetable for auction if the option is declined, a specified distribution formula for proceeds and an award of costs of $14,831.29 on a 2B basis.

    • Order for sale of property
    • S 339 property law act 2007
    • Valuation
    • Distribution of sale proceeds
    • Costs

  • 8 Jul 2020

    LO v LO [2020] NZHC 1614

    Citation
    [2020] NZHC 1614
    Court
    High Court

    The originating application is dismissed because the evidential foundation is inadequate to determine equitable interests and proportionate contributions (including uncertain provenance of alleged gift, undifferentiated family expenditure, and absence of third‑party and forensic accounting evidence), the originating application procedure was inappropriate here, and sale or buyout would impose disproportionate hardship on non-owning elderly occupants; parties are granted leave to commence ordinary proceedings with proper evidence.

    • S 339 property law act 2007
    • Co-ownership and division of property
    • Resulting trust vs presumption of advancement
    • Constructive/express trust issues
    • Procedural adequacy of originating application
    • Assessment of contributions and hardship

  • 13 Feb 2020

    NGUI v NGUI [2020] NZHC 160

    Citation
    [2020] NZHC 160
    Court
    High Court

    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…

    • Order for sale
    • Partition
    • Buy-out option
    • Specific performance
    • Occupation rent
    • Valuation

  • 23 Dec 2019

    MILLAR v MEYERS [2019] NZHC 3421

    Citation
    [2019] NZHC 3421
    Court
    High Court

    Division in kind was impracticable; plaintiffs may either purchase the first defendants' shares at the court-ordered price of $109,875 per share or the property must be sold with net proceeds divided equally; defendants must pay plaintiffs 50% of fair occupation rent from 1 January 2014 at specified weekly rates and grazing compensation from 1 January 2014 at $740 per hectare per annum; deductions for Family Court costs and the value of a utility building were refused for inadequate evidence; Marriners' mortgage will not be discharged without proper evidence and Marriners and Thomas Meyers ar…

    • S 339 property law act 2007
    • Occupation rent
    • Grazing income
    • Mortgage
    • Joinder
    • Costs

  • 26 Jun 2019

    KAPUKA HOLDINGS LIMITED v D J HARRISON LIMITED [2019] NZHC 1462 .

    Citation
    [2019] NZHC 1462
    Court
    High Court

    Because the defendant, during the hearing, adopted a practical position resolving the principal impediments (agreement to relocate the power cable and to treat the works as subdivision costs) and the subdivision agreement governed the process, the Court exercised its discretion under s339(1)(b) to order division/subdivision in accordance with the 29 June 2017 plan rather than order sale of the whole property.

    • S 339 property law act 2007
    • Order for sale vs order for division
    • Subdivision agreement enforcement
    • Easement relocation
    • Water supply rights
    • Allocation of subdivision costs

  • 29 Nov 2018

    WALSH v GOUGH [2018] NZHC 3104

    Citation
    [2018] NZHC 3104
    Court
    High Court

    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.

    • Co-ownership
    • Subdivision
    • Partition
    • S 339 property law act 2007
    • Partnership dissolution
    • Costs