Potter v Potter

[2023] NZHC 2316

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001810

[2023] NZHC 2316

UNDER

the Property Law Act 2007 and the High Court Rules 2016

IN THE MATTER

of an application for the sale of co-owned property

BETWEEN

FINN JOSEPH BOLTON POTTER

Applicant

AND

TIGER ART POTTER

Respondent

On the Papers
Counsel:	P J K Spring and W M van Roosmalen for Applicant
Judgment:	24 August 2023

JUDGMENT OF ISAC J

Introduction

[1]    The applicant, Mr Finn Potter, has applied without notice for leave to commence a proceeding by way of originating application. As required by r 19.5(3) of the High Court Rules 2016, the proposed originating application is filed with the application for permission.

Background

[2]    Mr Potter owns a property  together  with  his  brother,  the  respondent,  Tiger Potter, situated at 5 Mokau Street, Ponsonby.

POTTER v POTTER [2023] NZHC 2316 [24 August 2023]

[3]    The evidence filed in support of the application suggests that the property was initially purchased by Finn and his father in 2021. Mr Potter Snr subsequently transferred his interest to Tiger in March 2022.

[4]    After a fixed term tenancy came to an end, Tiger is said to have unilaterally occupied the property with some associates. Finn deposes that Tiger rented the property initially for $500 per week, when the median market rent for a three-bedroom home in Ponsonby is $1,050. There is a substantial gap, according to the applicant, between the rental arrangements Tiger has made and what Finn considers is a fair market return.

[5]    Finn also deposes that there was an incident on Christmas eve 2022. It is unnecessary to outline what is said but it is clear that if it is accepted by the Court it could be a matter relevant to the sustainability of the current ownership arrangements.

[6]    Finally, Finn notes that he is making the application as a last resort. He is in his early-20s and cannot afford protracted litigation or not receiving a proper market rent for the property.

[7]    Accordingly, Finn seeks an order under s 339 of the Property Law Act 2007 for an order selling the property (with the proceeds of sale divided between the co-owners), or alternatively, requiring Tiger to purchase Finn’s share at a fair and reasonable price.

Consideration

[8]    As van Boheman J has observed, while the originating application procedure has become more widely used than was originally envisaged, it remains the case that, in relation to contested proceedings not listed in r 19.2 of the High Court Rules, it is an exceptional procedure.1 It is suited to straightforward applications, not requiring detailed pleadings or interlocutory orders for its fair resolution.2 Resort to r 19.5 is to

1      Lung v Liu [2021] NZHC 1810 at [9].

2      Hong Kong and Shanghai Banking Corporation Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [25]. See also Solar Bright Ltd v Martin [2019] NZHC 300 at [20]–[24].

be exceptional rather than so common place that it becomes the rule that leave is granted.3

[9]Questions relevant to the exercise of the discretion include:

(a)whether statements of claim and defence would be required to fully inform the parties of the issues;

(b)whether interlocutory procedures such as discovery will be required; and

(c)whether the application is a straightforward one.

[10]   Having considered the application and the issues it raises, I am satisfied that it is straightforward and one sufficiently exceptional to support leave. The proceeding is unlikely to involve complex issues of law or rights but turns on the Court’s assessment of the history and current ownership arrangements, and whether they are sustainable. Pleadings beyond the particulars in the notice of originating application and any notice of opposition appear to be unnecessary, with the evidence to be provided by way of affidavit.

Conclusion and result

[11]   The application for leave to commence the proceeding by way of originating application is granted.

Isac J

Solicitors:
Keegan Alexander, Auckland for Applicant

3      Solar Bright Ltd v Martin, above n 1, at [18].