16 Jul 2021
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.
14 Oct 2020
Stay pending appeal granted but limited to a condition fixing a timetable: appellant must prepare the case on appeal and seek a hearing date in the Court of Appeal by 30 November 2020; an undertaking to compensate respondent was not imposed because the plaintiff's prior offer to buy the defendant's share at the defendant's valuation constituted a valuation marker allocating the risk of any diminution in sale proceeds to the defendant where the achieved sale price falls below that marker.
7 Apr 2020
The Property Sharing Deed required sale if no purchase options were exercised, the plaintiff and Deanes (70% owners) supported sale, the defendant did not engage or demonstrate hardship, and the property is vacant and incurring costs; accordingly an order for sale under s 339(1)(a) is appropriate.
23 Sept 2016
On the balance of probabilities the defendant accepted the transaction on the basis that any legal interest taken was to be held on trust for the plaintiff; the 31 July email, the solicitor's 6 August file note, the draft deed and the parties' subsequent conduct (transfer, financing structure, payments and occupation) establish a common intention constructive trust; therefore the defendant's 50% share of the net proceeds is held on trust for the plaintiff.
31 Aug 2015
The court found parties' contributions largely commensurate until November 2006 but, following the defendant's inheritance, the defendant provided the bulk of funds for improvements; the court quantified the post‑inheritance increase as 80% attributable to the defendant and 20% to the plaintiff and adjusted the division of sale proceeds accordingly, ordering sale (unless parties agree a buyout), division of proceeds 65% to defendant and 35% to plaintiff, payment of occupation rent from 1 October 2009 at $30/week, repayment by plaintiff from his share of any outstanding indebtedness to the def…
11 May 2015
The fixture was vacated because the defendant's case was not adequately prepared for trial and two witnesses who are fundamental to the defendant's case were unavailable on short notice; the interests of justice required adjournment with strict timetable and costs against the defendant.
17 Oct 2013
The November 2008 agreement was a temporary bridging arrangement not intended to lock plaintiffs in indefinitely; after prolonged delay (over five years) in realising the Okaihau property and having regard to the allocation of risk, the defendant had no arguable defence to the plaintiffs' s339 claim and summary judgment was appropriate to order sale of the Coopers Beach property and direct that proceeds repay the plaintiffs' $220,000 loan in priority to division by share.
20 Oct 2010
The defendant, as a trustee/co-beneficiary in continued exclusive occupation, owed an equitable obligation to account to the plaintiff; the court computed a monetary award by valuing the estate share (quarter of net equity) and offsetting a fair proportion of the payments made by the occupying co-owner against the plaintiff's loss of occupation benefit, arriving at a judgment sum rather than ordering an immediate sale due to market uncertainty.
11 Mar 2008
Because the late Dean Martin Henry Rika held only a one-66th share and a substantial majority of co-owners supported sale, the court exercised its power under s 341(3) Property Law Act 2007 to dispense with service on his beneficiaries; however the court required proof of service on identified persons (Kia Turoa, Reo Smith, Aroha Hokiangi, Te Ara Turoa, Aria Wahanui) before further orders for sale were made and reserved leave to return on three days' notice.
28 Feb 2007
Although it would have been preferable for Doyle to sign the contract as vendor, the court accepted that it was unnecessary so long as Doyle prepares a transfer of Body Clinic's title which Body Clinic signs and settlement proceeds; the court reiterated prior orders requiring payment of marketing and related costs and directed those sums be paid to Body Clinic's solicitors no later than three days prior to settlement unless an undertaking to pay at settlement is given; no immediate remedy was ordered regarding the caveat as it affects only Doyle's title; the file is to be supervised by a sing…