IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV [2016] NZHC DONNA MARIE PARISH Respondent

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV [2016] NZHC 2225 BETWEEN AND MARIE ZELMA BUNYAN AND BELINDA VAN ESCH as executors of the estate of KAREN MARIE BUNYAN (Deceased) Applicants DONNA MARIE PARISH Respondent Hearing: 3 August 2016 Further submission 9 and 16 September 2016 Appearances: S McKenna for the Applicant J Niemand, Counsel to assist the Court Judgment: 20 September 2016 JUDGMENT OF MUIR J This judgment was delivered by me on Tuesday 20 September At 4.30 pm Pursuant to Rule 11.5 of the High court Rules. Registrar/Deputy Registrar Date: Counsel/Solicitors: S McKenna, Grantham Law, Hamilton J Niemand, Peebles Hoult, Hamilton BUNYAN v PARISH [2016] NZHC 2225 [20 September 2016]

2 Introduction [1] The estate of the late Karen Marie Bunyan owns a Hamilton property as tenant in common in equal shares with the defendant (formerly known as Donna Parish but now as Daniel Nova). Mr Nova was Ms Bunyan s former partner. They have been separated for 20 years during which time Mr Nova has neither lived in nor contributed to the property. The estate seeks orders in relation to the property under ss 339 and 343 of the Property Law Act 2007 (PLA). Factual background [2] In September 1990 Ms Bunyan and her then partner Ms Vanessa Whittingham purchased a 1950 s bungalow at 67 Mardon Road, Enderley, Hamilton, as tenants in common in equal shares. [3] That relationship came to an end in In the same year Ms Bunyan entered into a new relationship with the defendant. At that point Ms Whittingham s equity in the property and related chattels was approximately $25,000. In order to finance a settlement with her, additional bank borrowings were required, taking total borrowings secured against the property to $69,000 at a time when the registered valuation of the property was according to bank records $92, [4] In an affidavit filed prior to her death, Ms Bunyan deposes that her income as the recipient of an invalid s benefit was insufficient to sustain the additional borrowing but that, with the inclusion of what she describes as board payments from her new partner relevant lending criteria were met. [5] That is not, however, how the transaction was structured either as between Ms Bunyan and Mr Nova, or the parties and Trustbank (which provided the refinancing facility). Rather, Ms Bunyan and Mr Nova entered into a joint application for loan finance, identifying their relationship as tenants in common and their combined income, including for the provision of foster parent services, as $602 per week. 1 A retrospective valuation at the same date obtained for the purposes of the proceedings identifies the property s value as $88,000 as at 1 September 1994.

3 [6] That application was approved and on 13 September 1994 simultaneous transfers were effected by Ms Whittingham, who transferred her half share as tenant in common in the property to Ms Bunyan, and by Ms Bunyan who transferred the property to herself and Ms Parish (as she was then known), as joint tenants. This second transfer was stated to be in consideration of natural love an (sic) affection. [7] In her affidavit Ms Bunyan states that she had no idea that Donna [Mr Nova] was going to be an owner of my property and indeed did not understand this until it was explained to her by her then partner (and one of the executors) Belinda Van Esch in She apparently thought nothing of the fact that for 18 years rates notices continued to arrive in the joint names of herself and Ms Parish describing herself as having a simple mind and not being familiar with legal matters. [8] That evidence is difficult to reconcile with the 1994 transfer to the parties as joint tenants, the terms of the application for mortgage finance and the fact that Ms Bunyan and Mr Nova became, from September 1994, co-mortgagors of the property. [9] Ms Bunyan and Mr Nova separated in June Between 22 September 1994 and 11 June 1996 Mr Nova made periodic payments directly to Ms Bunyan s Trust Bank account, from which mortgage interest and principal were also deducted. These totalled $8, At times the payments were in regular amounts of $300 per fortnight. At others they were less regular. At the same time fortnightly payments against the loan were $302.67, being interest of $257 and principal of approximately $65. Ms Bunyan says that the payments received from Mr Nova were board for her and her son. Whatever their status, that additional income was clearly essential to service the mortgage. A perusal of Ms Bunyan s bank statements over the relevant period indicates that there was little in the way of margin between income and outgoings. [10] Following the parties separation, Ms Bunyan says that her lawyer suggested to her that she needed Donna to sign something saying she didn t have a claim in the property. Again that is difficult to reconcile with Ms Bunyan s evidence that she had no idea Mr Nova was co-owner of the property until In any event, on 6 December 1996 Mr Nova purportedly signed a document in terms:

4 I Ms Donna Marie Parish hereby state I have no claim to the property situated at 64 Mardon Road, Fairfield, Hamilton. I shifted out of the said property on 22 June [11] The document is on its face witnessed by Ms Bunyan. I say purportedly and on its face because counsel assisting, Mr Niemand, draws attention to dissimilarities in the signatures of both Mr Nova and Ms Bunyan when compared to those on the loan application and Ms Bunyan s signature on the transfer. I accept that there are dissimilarities, however, there is uncontradicted evidence from Ms Bunyan that the document was signed by both herself and Mr Nova at the Mardon Road property in December 1996 in the presence of a third party Mr Robert Williams. Ms Bunyan also deposes that straight after she gave the document to her solicitor. [12] That account is supported in a hearsay statement by Mr Williams dated 24 May 2004 which was signed before a Justice of the Peace and in which he says he was present at the relevant time, that Ms Bunyan asked Mr Nova to sign something saying that she would not make any claim on the property and that: Donna stated she never put anything in to it and didn t want anything out of it and was happy to sign. [13] I am advised that Mr Williams has also died. I admit his statement under s 18 of the Evidence Act 2006 on the basis the statement is, on its face, sufficiently reliable for me to consider it. It is then for me to draw conclusions as to weight. [14] In the absence of evidence to the contrary and having regard to the statement of Mr Williams, the veracity of which is not challenged, I conclude that on 6 December 1996 Mr Nova confirmed in writing that he had no claim to the property. However, such disclaimer was not supported by consideration and nor was there a perfected gift by Mr Nova of what was, at that stage, his legal interest as joint tenant of the property. [15] From the time the parties separated Ms Bunyan deposes that Mr Nova made no contributions to mortgage payments, rates or other expenses. Such other expenses will have inevitably included routine maintenance although in a 2014 valuation provided to the Court the property is described as being in fair only

5 condition. Photographs annexed to that report indicate that there has been no significant expenditure in relation to service areas. The front and eastern walls of the house are described as recently repainted but other areas and the roof are said to be due for maintenance. [16] The Trust Bank mortgage over the property has now been discharged. [17] In 2007 a caveat against Mr Nova s interest in the property was registered on account of the apparent provision of legal aid to him. On its face this appears inconsistent with his renunciation of interest in Ms Bunyan deposes that she had no idea she was using my property for legal aid. [18] Sometime in or about 2012 Ms Bunyan was diagnosed with a terminal illness. In apparent response, she took legal advice which was to the effect that she should sever the joint tenancy. This occurred by transfer registered on 13 December Thereafter Ms Bunyan and Mr Parish were tenants in common in equal shares of the property. [19] Ms Bunyan died on 29 October Procedural history and how claim is to be dealt with [20] Procedurally, the claim comes before the Court by way of an originating application for orders for division of property among co-owners under s 339 of the Property Law Act 2007 (the Act). At the time of filing in 2013 that application was supported by Ms Bunyan s affidavit. It was in orthodox terms seeking orders under ss 339(1) and 343 of the Act. [21] However, in an amended notice of originating application dated 10 July 2014 the executors sought an additional order under the Act and under the Courts (sic) general equitable jurisdiction that: (1) The respondents (sic) share or any part therefore (sic) is held by the respondent on a constructive trust for the plaintiff.

6 [22] Such an order is in substance, one seeking a declaration under the Declaratory Judgments Act However, the proceedings were not initiated by statement of claim and notice of proceeding, as such a declaration would have required. Nor do the orders which the Court may make under ss 339 or 343 of the Act extend to that sought in (1) of the amended application. [23] In submissions filed prior to the hearing, the applicants went further and suggested that a resulting trust might be imposed over all of the respondent s half share in the property or the principles referred to in Holster v Grafton, 2 the proposition being that where a property is purchased by one party and placed in the name of another the law will, without more, impose a resulting trust in favour of the party who provided the consideration for the purchase. [24] That proposition was not maintained in oral submissions. The applicants concession in that respect was inevitable. There can be no argument that Mr Nova did indeed provide valuable consideration for the transfer in terms of his assumption of joint and several liability for the refinanced debt on the property. Alternatively, the transaction could be analysed in terms of perfected gift, again precluding a resulting trust argument. [25] In oral submissions the applicants maintained, however, a claim to a constructive trust over some part of the respondent s share, relying on authorities from the de facto property context such as Lankow v Rose. 3 [26] In a Minute published subsequent to the hearing I questioned whether the Lankow v Rose line of authorities materially assisted the analysis given that they are directed to cases where the property was in the ownership of one party to the relationship whereas, in this case, the property was jointly owned. I also expressed my provisional view that all of the equities which might otherwise be considered on a constructive trust claim were adequately captured in the discretions vested in the Court under ss 339 and 343 of the Act. In addition, I raised jurisdictional concerns 2 3 Holster v Grafton (2008) 9 NZCPR 314 (HC). Lankow v Rose [1995] 1 NZLR 277 (CA).

7 about the Court s ability to declare a constructive trust on an originating application under the Act. [27] In response to that Minute, the applicants now invite me to deal with their claims within the exclusive framework of the Act, which I do. The issues [28] The sole issues for determination are therefore: (1) whether an order under s 339(1)(a) or (c) is appropriate (it being accepted that division of the property in kind between the co-owners is not a practicable remedy); and (2) if so, whether there should be compensating payments to reflect the absence of contribution to the property by Mr Nova for approximately 20 years (on the one hand) and non-payment of any occupation rent in relation to his half share for the same period (on the other). Legal framework The Property Law Act 2007 [29] Section 339 of the Act provides: 339 Court may order division of property (1) A court may make, in respect of property owned by co-owners, an order (a) (b) (c) for the sale of the property and the division of the proceeds among the co-owners; or for the division of the property in kind among the coowners; or requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price. (2) An order under subsection (1) (and any related order under subsection (4)) may be made (a) despite anything to the contrary in the Land Transfer Act 1952; but

8 (b) (c) (d) only if it does not contravene section 340(1); and only on an application made and served in the manner required by or under section 341; and only after having regard to the matters specified in section 342. (3) Before determining whether to make an order under this section, the court may order the property to be valued and may direct how the cost of the valuation is to be borne. (4) A court making an order under subsection (1) may, in addition, make a further order specified in section 343. (5) Unless the court orders otherwise, every co-owner of the property (whether a party to the proceeding or not) is bound by an order under subsection (1) (and by any related order under subsection (4)). (6) An order under subsection (1)(b) (and any related order under subsection (4)) may be registered as an instrument under (a) (b) the Land Transfer Act 1952; or the Deeds Registration Act 1908; or (c) the Crown Minerals Act [30] The Court must also have regard to the following relevant considerations: Relevant considerations A court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following: (a) (b) (c) (d) (e) (f) 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: the nature and location of the property: the number of other co-owners and the extent of their shares: 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: the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property: any other matters the court considers relevant. 4 PLA 2007, s 339(2)(c).

9 [31] The Court may also make the following additional orders: Further powers of court A further order referred to in section 339(4) is an order that is made in addition to an order under section 339(1) and that does all or any of the following: (a) (b) (c) (d) (e) requires the payment of compensation by 1 or more co-owners of the property to 1 or more other co-owners: fixes a reserve price on any sale of the property: directs how the expenses of any sale or division of the property are to be borne: directs how the proceeds of any sale of the property, and any interest on the purchase amount, are to be divided or applied: allows a co-owner, on a sale of the property, to make an offer for it, on any terms the court considers reasonable concerning (i) (ii) the non-payment of a deposit; or the setting-off or accounting for all or part of the purchase price instead of paying it in cash: (f) (g) requires the payment by any person of a fair occupation rent for all or any part of the property: provides for, or requires, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under section 339(1). Relevant principles from the cases [32] The common law has long provided remedies for resolution of claims between joint owners and tenants in common. That law has now largely been codified in the Act. The following settled principles are relevant to the claim: (i) The unity of possession is common to both joint tenancies and to tenancies in common. 6 Both co-owners are entitled equally to enjoy the property, whether that be in occupation or in receipt of a 5 6 PLA s 339(4). Tom Bennion and Others Land Law in New Zealand (2 nd ed, Brookers, Wellington, 2009) at [6.6.01].

10 proportional share of the rents or profits resulting from the property s management. 7 (ii) If one co-owner takes sole occupation of jointly owned property, he or she is not usually liable to compensate the other simply by being in sole occupation. 8 However, if the co-owner has been excluded and is unable to enjoy their occupation rights they may be entitled to compensation in the form of an occupation rent. Exclusion by way of breakdown of relationship has been recognised as one such category. 9 (iii) Contributions towards mortgage repayments, both principal and interest as well as to rates and property maintenance and expenditures that have increased the value of the relevant property have all been recognised as relevant to the accounting which is required on sale or purchase by one co-owner of another s share. 10 [33] Although the claim is no longer pursued as one seeking a declaration of constructive trust, I take into account the principles relevant in that context in that the considerations which inform exercise of the ss 339 and 343 discretions do not seem to me to be materially different from the considerations which motivate equity when called upon to impose a constructive trust. I refer, in particular, to the fact that, within that context and allowing for the fact that quantification can seldom be precise, the Court must do its best fairly to reflect the value of the respective parties contributions. 11 I accept also that an approach which focuses on the fruits of contribution rather than a simple arithmetical approach is to be preferred 12 so that, for example, if a contribution by one party to a renovation increased the value of the property by a sum exceeding the renovation cost, it would be unjust for the noncontributing party to retain the benefit of that enhanced value Bull v Bull [1955] 1 QB 234 (CA). McCormick v McCormick [1921] NZLR 382 (SC) at 385. Surridge v Quinn HC Wellington CP830/91, 13 May Long v Moore (1989) 1 NZ ConvC 190,239 (HC). Lankow v Rose, above n 3 at 295. Giles v Keogh [1989] 2 NZLR 327 (CA).

11 Analysis [34] On the most favourable analysis available to Mr Nova his financial contributions to the property total the $8, identified as having been paid by him to the account of Ms Bunyan during the period that they lived together. I say most favourable because it is not clear whether those payments also included allowances for food and utilities. Ms Bunyan describes the payments as board but it was clearly envisaged by the parties, at the time of the application for finance, that Mr Nova s income was to be included for mortgage servicing purposes. The applicants accept that the respondent should receive a credit to that extent. [35] Moreover Mr Nova remained a co-surety of the mortgage with potential personal exposure had Ms Bunyan defaulted in payments and the equity in the property not been sufficient to retire the bank debt. However, as the property increased in value over time that became an increasingly academic risk. Moreover, in the 18 years between the separation and her death Ms Bunyan at no time required assistance from Mr Nova to service the debt despite her modest and at times extended financial circumstances. 13 To the contrary, Ms Bunyan deposes that, at least in the period immediately following separation, she in fact continued to provide financial assistance to Mr Nova. [36] Although the breakdown of the relationship and the consequent impracticality of Mr Nova thereafter asserting his occupation rights would ordinarily sound in an occupation rent in his favour under s 342(f), such relief would, in my view, be inappropriate in the circumstances of this case and in particular where, as I have found, Mr Nova expressly disclaimed any interest in the property from a point shortly after separation. Had a claim to ongoing occupation rights (or rental in lieu) been made by Mr Nova at the time then it seems to me highly unlikely that 17 years would have elapsed before Ms Bunyan sought the assistance of the courts. In that context to charge against her or her estate a notional occupation rent for 20 years would in my view work a substantial injustice. I would, if required, be prepared to find all the necessary ingredients of an equitable estoppel against such a claim. I 13 As reflected in a number of dishonoured transactions in the bank statements produced.

12 note in addition that there is no evidence of Ms Bunyan having, for example, rented out the property or any part of it over the relevant period. [37] I accept that on the basis of the relationship having come to an end, Mr Nova s exclusion from the property for the six month period between separation and the letter of disclaimer could give rise to a potential occupation rent claim for that period. There is no evidence before the Court on which to base such an assessment. The total sum involved would necessarily be modest (my expectation is less than $2,000 given that the assessment would be based on half the rental value of the property). However, I decline an allowance in that respect. There is no evidence that Mr Nova made any claim at all to the property in the relevant six month period. To that extent the disclaimer simply formalised what had been assumed by both parties. [38] Turning then to Ms Bunyan s contributions to the sustenance and maintenance of the property, an arithmetical approach would dictate me aggregating as best I can on the evidence, total outgoings in respect of the property from the time of its purchase to the time of judgment and to subtract from that the sum of $8,811 acknowledged as Mr Nova s contributions. In that respect I take into account the fact that the mortgage (originally $69,000) was by July 2014 discharged, and that Westpac records show interest of $42, as having been paid for the period 25 May 1998 to July I accept also Mr McKenna s calculations of interest paid during the relationship of $12, and for the period from separation to 25 May 1998 of $10, In respect of rates, insurances and maintenance (including of the grounds) I suggested to counsel an averaged annual sum of $2,000 which Mr McKenna accepts and Mr Niemand abides. In the absence of more detailed evidence I consider this to be an appropriate allowance mindful, as Mr Niemand says, of the requirement, in places, to adopt a robust approach. Although in respect of all maintenance and sustenance of this nature there will be cases where the payment represents no more than a quid pro quo for free use of the non-occupiers share of the property 14 such is not, in my view, an appropriate analysis in the context of the respondent s disclaimer. I intend therefore to recognise each of these payments. 14 As recognised by Wallace J in Long v Moore, above n 10, at [6].

13 [39] Taking the total relevant period as 22 years from 1994 to 2016, an arithmetical calculation produces the following result: (1) Mortgage repayments (principal and interest) $134, (2) Rates, insurances and maintenance 22 years at $2,000 per annum $ 44, $ 178, Nova ½ share $ 89, Less amount paid $ 8, Excess contribution by Bunyan $ 80, [40] However, I agree with Mr McKenna that a simple arithmetical approach does not fully capture the true extent of Ms Bunyan s excess contribution over that of Mr Nova. For a start, it was Ms Bunyan s existing equity in the property ($25,000) which was key to the whole transaction. Moreover, to fairly compensate Ms Bunyan s estate some allowance for interest would be necessary on all the multiple outgoings (mortgage, rates, insurance and maintenance) which Ms Bunyan exclusively serviced over the years. If the excess contributions were averaged out over the relevant 22 year period and were to attract interest at the current prescribed rate of five per cent per annum (which on a robust assessment of the equities in this case, I consider appropriate despite fluctuations in interest rates over the relevant period) the resulting allowance would be in the order of $42, [41] In my view the hardship that would be caused to the applicants from failing to recognise an interest component in the calculation of compensation significantly outweighs the hardship to the respondent from its recognition, particularly given Mr Nova s minimal contributions to the sustenance of the property and his renunciation of interest. It is a matter which I therefore consider legitimately taken into account in terms of s 342(d). I am conscious also of the fact that under s 342(f) I may have regard to any other matter which I consider relevant and that the mandate under s 339(1)(c) is to establish a price for purchase of the co-owner s share which is not only reasonable but also fair. All of these provisions underscore that the role of 15 The calculation commences at the end of the first year after separation by which time an excess contribution of $3,661 had, on the approach adopted, accrued.

14 the Court is, as Wallace J said in Long v Moore to adjust the rights of the co-owners in an equitable manner. 16 An interest allowance in my view serves that objective. 17 [42] An alternative way to achieve the same objective would be to adopt Mr McKenna s suggested valuation of the property at the date of separation ($93,000 against the $88,000 valuation recorded two years earlier) and then to identify to what extent subsequent increases in value represent the fruits of Ms Bunyan s contribution. Since such increase flowed almost exclusively from rising property markets over the intervening period, Mr McKenna says, and I accept, that it was Ms Bunyan s service of the mortgage and other outgoings over that period which (substantially) enabled the increase in value to accrue. Mr Nova s contribution over the same post-separation period was in the far more theoretical category of a cosurety never called upon. [43] There is no agreed valuation of the property before the Court. The last registered valuation was in June 2014 in the amount of $225,000. The current CV is $265,000. Mr Niemand submits and I accept that neither is likely to represent the present value in Hamilton s rising residential property market. If orders are to be made under s 339(1)(c), a formula, as opposed to identification of a specific purchase price for Mr Nova s share, is therefore required. [44] Both counsel accept that the preferable course is for orders under that section. In Holster v Grafton 18 Fogarty J held that s 339(1)(c) did not expressly authorise the Court to impose a sale by valuation on an unwilling co-owner and, in obiter remarks, he observed that, neither in his view, should such a power be implied. However, that was a case where the manner in which the co-ownership had come about was not one from which a right to force either a sale or partition could be inferred. Moreover, in this case Mr Nova s position in respect of a purchase of his share is neutral. He has chosen to take no part in the hearing Long v Moore, above n 10, at [8]. Section 343(1) refers to compensation. To that extent it invites, as do many of the cases, exercise of an essentially equitable jurisdiction. In Rama v Miller [1996] 1 NZLR 257 (PC) it was recognised that Courts of Equity have a jurisdiction to award interest which is outside and additional to the statutory power in s 87(1) of the Judicature Act See also Day v Mead [1987] 2 NZLR 443 (CA) at 463 in which the Court held that s 87 afforded jurisdiction to award interest on equitable compensation. Holster v Grafton (2008) 9 NZCPR 314 (HC)

15 [45] I therefore consider the case an appropriate one for orders under s 339(1)(c). [46] In terms of mechanics of establishing an appropriate value for the property, I largely adopt Mr Niemand s helpful proposals. My formal orders reflect these. [47] As to the formula to then be applied it is in terms: (a) Value of Nova half share (being half either of the agreed or registered value of the property as established pursuant to [48](b)-(d)) [To be established] (b) Less excess Bunyan contributions $ 80,562 (c) Less interest on excess contributions as provided for in [40] above $ 42,000 Result [48] I accordingly order that: (a) The applicants purchase the respondent s share of the property described as 67 Mardon Road, Enderley, Hamilton for a sum calculated by reference to the formula referred to in [47] above. (b) The value to be attributed to the property for the purposes of [47](a) is to be agreed by counsel for the applicants and counsel assisting within 10 working days of the delivery of judgment. (c) In the absence of agreement, a registered valuation of the property is to be obtained from such registered valuer as counsel for the applicants and counsel assisting mutually identify within a further 10 working days. Failing agreement as to the identity of the valuer, such valuation is to be conducted by a person nominated by the President of the New Zealand Institute of Valuers for the time being. (d) The costs of such valuation shall at first instance be payable by the applicants.

16 (e) From the sum payable to the respondent in terms of Order (a) herein, the following sums are to be deducted in the following priority: (i) Such sum as is required to discharge claims registered against the property under the Legal Services Acts 1991 or 2000 for the provision of legal services to the respondent. (ii) One half of the cost of the registered valuation referred to in Order (c) (if required). (iii) The sum of any costs order which, on application, the Court may make. (f) In the event the amount owing pursuant to the claims in Order e(i) exceeds the amount payable to the respondent pursuant to Order (a), judgment in favour of the applicants against the respondent for such additional sum as is necessary to effect a discharge thereof together with such further sums as may be payable in terms of Order e(ii) and e(iii). (g) The respondent shall execute all such documents as are necessary to effect a transfer of the property to the applicants on payment of the sum provided for in terms of this judgment. [49] I reserve leave to the parties to apply for any further or additional orders necessary to give effect to the judgment. Costs [50] The reasonable costs of Mr Niemand as amicus are to be met from funds appropriated for the purpose. [51] In the event the applicants seek costs against the respondent, memoranda may be filed on the following timetable:

17 (a) Applicants memorandum by 30 September (b) Memorandum of counsel assisting by 14 October 2016 [52] Provisionally, there appear to me to be good grounds for costs to lie where they fall given the circumstances which gave rise to the proceedings and the applicants responsible acknowledgment throughout that orders under s 339(1)(c) would necessitate some payment to the respondent. Muir J