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Financially ‘perilous’ main contributor to property’s upkeep permitted to sell

19 Apr 2024

| Author: Andrea Hilton

Formal proof – Senior Courts Act 2016 – High Court Rules 2016, r15.9 – order for sale – Property Law Act 2007, ss 339, 342 & 343

Wirepa v Wirepa [2024] NZHC 587.

 

Silvana Wirepa successfully applied for an order for the sale of land under s 339 of the Property Law Act (the Act). The order was made after a formal proof hearing.

The defendants, co-owners and interested parties, were determined by directions of the court. They were her sister Jewell Wirepa, the daughter of the administratrix of their uncle’s estate and Silvana’s uncle’s only daughter. An order for sale was required because the administratrix of her uncle’s estate died before administering and distributing the estate and a new administrator was not appointed. The defendants were served but took no action. Jewell had indicated her support of the sale.

Silvana was not applying for a liquidated amount, so the application was set down for formal proof under rule 15.9.

Silvana owned a 17/24 share in the property; Jewell owned 3/24; and their uncle’s estate owned 4/24. The property comprised 883 m², was very steep and mostly covered in bush. It was also 84 km from Ōpōtiki and 126 km from Whakatāne, the closest major towns. A small, unconsented building was on the property and it could not be rented as a residence because it did not comply with Healthy Homes standards. The building and a fence encroached onto state highway land and Waka Kotahi estimated it would cost between $20,000 and $26,000 + GST to rectify it.

Silvana was the sole contributor to the property. The Ōpōtiki District Council agreed to remit the rates penalties on the condition Silvana made weekly $50 payments to clear the arrears. The court was satisfied that from 2005 to 2018 Silvana paid significant amounts to improve the property and spent time working on it. Rent was received for the property. While it did not cover the expenses, Silvana made up the shortfall. She could no longer continue to pay the expenses on the property and the other owners did not contribute.

Silvana lived in Australia and suffered poor health. Her financial position was described as “perilous”: her income was irregular and she was involved in litigation relating to her own home, which was financially burdensome. Silvana needed the funds tied up in the property and could not continue to finance it. She would suffer hardship if the order was not made.

None of the defendants lived on the property or even close to it. An order would not cause them hardship. A cash injection to the uncle’s estate would be a benefit.

 

Applicable principles: Plaintiff’s evidence must satisfy court – caution necessary because plaintiff’s evidence untested – applicant’s share of the property – property location and nature – co-owners’ shares – hardship caused to applicant by refusal of order – hardship to others by order – value of co-owners’ contribution to property.

Held: An order for sale was made.

Orders were also made exercising the further powers and discretions in s 343 of the Act . These covered method of sale, real estate agent to be used, minimum sale price, plaintiff authorised to sign sale documents, confirming conveyancing lawyers to act for plaintiff and defendants, mechanics of registering new owner on record of title, the disbursement and priority of disbursement of the proceeds of sale.

 

After 14 years as general counsel for a local authority, Andrea Hilton is now a sole practitioner practising local government law

 

Wirepa v Wirepa [2024] NZHC 587

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