Belcher v Baldwin [2003] NZCA 116; [2003] NZFLR 913 (19 June 2003)

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 171/02

BETWEEN TERRENCE JAMES BELCHER
Appellant

AND CHRISTINE MARIE BALDWIN
Respondent

Hearing: 10 June 2003

Coram: Blanchard J Panckhurst J O'Regan J

Appearances: J P McCarthy for Appellant
E J Tait for Respondent

Judgment: 19 June 2003

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Introduction

[1] This is a de facto relationship property case. The asset in dispute is a lifestyle property near Haast in South Westland. In the High Court Ms Baldwin obtained an order for partition, since the property is registered as a joint tenancy, with the net sale proceeds to be shared equally.
[2] In reaching that result the Judge accepted that the certificate of title reflected the intention of the parties as to their underlying beneficial interests. In particular he found that Mr Belcher had failed to rebut the presumption of equality which followed from creation of the joint tenancy in the first place. Alternatively and in case that conclusion was wrong the Judge found that Ms Baldwin’s contributions to the asset justified her claim to a half share upon an application of the principles in Lankow v Rose [1995] 1 NZLR 277 (CA).
[3] The conclusions reached in the High Court concerning common intention and concerning the extent of the respondent’s contributions to the property lie at the heart of the appeal. Of significant importance to the appellant’s case are the circumstances that the relationship lasted for only about eight years and that there was an age difference of thirty-one years between the parties. As a consequence Mr Belcher, who was the older, was able to bring much more to the relationship in material terms than was his partner.

Background

[4] Mr Belcher was born in 1932. After leaving school he trained as a maintenance fitter. In the mid 1950s he married and had a family. He separated from his wife in 1975. Soon after Mr Belcher moved from Canterbury to Karamea. He became involved in fixed-wing deer recovery and, after obtaining the requisite licence, in helicopter deer recovery. During the 1980s and 1990s he worked in partnership with his son.
[5] Ms Baldwin was born in 1964 in the United States. In late 1988 she travelled to New Zealand. After walking the Heaphy Track she met Mr Belcher in Karamea in December 1988. An entry made in her diary referred to him as “the famous chopper pilot who I had been hearing so much about ...”. Subsequent entries confirmed that a relationship quickly developed despite the age difference.
[6] The two lived together in Karamea for about three years. Ms Baldwin assisted in the running of the helicopter-based business, although the extent of her contribution became an issue at trial. In 1992 Mr Belcher sold his Karamea home for $85,000. This was in anticipation of a move to Haast. The reason for the move was also disputed. Mr Belcher maintained that differences which existed between Ms Baldwin and his son and daughter-in-law prompted the relocation. Ms Baldwin maintained the reasons were business ones related to the establishment of a new national park which significantly affected the business operation. Whatever the reason, the move was preceded by a period when the two commuted between Karamea and Haast. The sale proceeds from the Karamea property were used as to $50,000 to buy out the interest of Mr Belcher’s son in the helicopter business. The balance was used to meet business and living expenses.
[7] In about July 1992 Ms Baldwin and Mr Belcher entered into an agreement to purchase a 1.1 hectare block of land on the main highway between Haast and Jacksons Bay. The vendor was Landcorp. The price was $11,000, of which a deposit of $5,000 was paid from Mr Belcher’s business account on 3 July 1992. The intention was to use this land to build a home and other facilities to enable it to be used as a new business base. There was considerable delay on the vendor’s part in providing title. In the meantime the joint purchasers registered a caveat to protect their interest. Eventually in July 1994 a certificate of title became available and the purchase was settled, the balance of the price again coming from the business account. The area where the land is situated is known as Mussel Point, Okuru. It is about 16 kilometres south of Haast township.
[8] In the meantime plans were finalised and a building consent obtained for the construction of a house on the land. In fact building commenced in late 1993 and continued into the following year. By March the house was sufficiently complete for the parties to move in and leave the rented accommodation which they had occupied until then. When title was registered in July 1994 it was as a joint tenancy. How this occurred and its significance in relation to beneficial ownership is a central issue to which we shall turn shortly.
[9] In addition to the house a large hangar, suitable for a helicopter, was constructed and adjacent to it a commercial chiller. This was for the storage of venison. Counsel, Mr McCarthy, in the course of submissions described the house and business base thereby established as replicating that which Mr Belcher previously had in Karamea.
[10] The cost of the development was about $140,000 of which $60,000 was borrowed from a bank and secured on first mortgage. The balance of the funds came in the main from Mr Belcher’s business account, which he used for both work and domestic purposes. Once he had bought out his son Mr Belcher traded on his own account as Belcher Helicopters.
[11] Over time the land was improved by the establishment of pasture, tree planting around the perimeters and driveway, and landscaping around the house itself. Driveways to provide access for vehicles to the chiller and hangar were also developed.
[12] In January 1997 the parties separated. Ms Baldwin moved out. After a time she settled in the Wanaka area where she obtained work as a builder’s labourer. Mr Belcher remained in the Mussel Point property. He is now essentially retired and in receipt of Government Superannuation. His helicopter was extensively damaged in an accident in December 1997 when it was uninsured. His helicopter business has not been active since then.
[13] The proceeding was issued by Ms Baldwin in September 2000. In it she sought an order for partition of the Mussel Point property pursuant to s140 of the Property Law Act 1952 or, alternatively, a declaration that the beneficial interests in the property were equal in terms of the equitable principles in Lankow v Rose. Mr Belcher counter-claimed seeking a declaration that Ms Baldwin’s joint ownership of Mussel Point was subject to a constructive trust in his favour commensurate with his greater contributions to the acquisition and development of the property.

High Court hearing

[14] Numerous and voluminous affidavits were filed. In addition there was a two day hearing in the High Court on 17-18 July 2002. The parties were cross-examined at length, and some of the other deponents were challenged as to the contents of their affidavits.
[15] In a decision dated 31 July 2002 the Judge found for Ms Baldwin. He concluded that unless Mr Belcher could establish otherwise the legal title, a joint tenancy, was also determinative of the parties’ underlying beneficial interests in Mussel Point. He found that Mr Belcher had not rebutted that presumption. In case that conclusion was wrong the Judge went on to consider the case in terms of contributions. He was satisfied that Ms Baldwin’s contributions were the equal of Mr Belcher’s, and that accordingly equal sharing was appropriate on this basis as well. An order was made that Mussel Point be sold at public auction within six weeks and for the net proceeds of sale to be divided equally. A sale has not proceeded on account of this appeal.
[16] Both conclusions, that the title was intended to reflect the beneficial interests of the parties in the property and that their contributions to it were equal in any event, are squarely challenged in this appeal.

The title: an expression of common intention?

[17] Given that Ms Baldwin’s claim was one for partition of the land, the Judge viewed s140 of the Property Law Act as the starting-point:

140. In action for partition Court may direct land to be sold –

(1) Where in an action for partition the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.
[18] However the Judge was faced with a contention by Mr Belcher that there was “good reason to the contrary” in relation to directing an immediate sale. He asserted that although Ms Baldwin was a registered joint tenant of the property her beneficial interest did not represent one moiety or more. Rather than being a case for partition, it was one which required definition of the underlying beneficial interests to enable Mr Belcher to acquire Ms Baldwin’s interest, if any.
[19] With reference to Gormack v Scott (1995) 13 FRNZ 43 (CA) the Judge noted that where there was an express common intention which remained applicable to the circumstances that had arisen such was determinative of the parties’ interests. There was no need to fall back on reasonable expectations. He therefore identified as the first issue, what was the intention of the parties when they took title to the land as joint tenants? Turning to the evidence he recorded at the outset preference for the evidence of Ms Baldwin over that of Mr Belcher where there was conflict. The Judge expressly rejected an implication he saw in the defence case that she was “some sort of gold digger”.
[20] Attention then turned to a conflict concerning Ms Baldwin’s immigration status. When the parties met she was a visitor to New Zealand. Subsequently she sought New Zealand residency. In support of her application reliance was placed upon the circumstance that she was living in a settled de facto relationship with Mr Belcher. He supported her, including attendance at an interview or interviews at which her status was under consideration. Against this background Mr Belcher deposed that title to the Mussel Point land was taken in joint names to assist Ms Baldwin with her immigration difficulties. She refuted this, in particular by pointing to a letter from the New Zealand Immigration Service which recorded the grant of residency approval in July 1990. The agreement for sale and purchase in relation to the land was not signed until mid 1992 and title did not become available for a further two years.
[21] Against this background the Judge’s essential finding was expressed in these terms:

[43] I do not accept the evidence of the defendant that the joint tenancy arose for immigration purposes. Mr Belcher accepted in cross examination that the plaintiff would have told him when she received residency status. In this regard, I accept the evidence of the plaintiff referred to above about the decision to buy the property jointly. In the course of the relationship, as she noted, it was natural. I have no doubt that it was the intention of the parties that they jointly buy this section together and construct a house and hangar on it with the intention of equally sharing the property and their lives. I reject the allegations relating to immigration, and therefore the presumption is not rebutted on that basis. On the facts I am satisfied that the title reflects the parties’ intentions.

[22] Mr McCarthy questioned the Judge’s process of reasoning. He suggested that the actual position in relation to Ms Baldwin’s residential status was less important than Mr Belcher’s perception of the position. Since the money to purchase the land came from his business account, it was his state of mind which was of most significance in assessing the intention behind joint registration.
[23] Mr McCarthy developed his argument in relation to this aspect with reference to the test suggested in Cossey v Bach [1992] 3 NZLR 612 (HC) a decision of Fisher J. At 628 and after a detailed discussion under the heading “Relevance of Legal Title” the Judge expressed his conclusions in these terms:

However, it would seem that before an expressed intention can qualify for present purposes it must be (i) unequivocal; (ii) expressed by the partner or partners who had the power to dispose of the interest in question; and (iii) pertinent to the current circumstances. As to (i), I have previously referred to the new emphasis upon clarity of expression. Even now, I think that in principle an intention could be expressed by conduct rather than oral or written statement, but it would seem that the Courts will no longer be assiduous in searching for debatable expressions of intention.

In discussing the second requirement the Judge noted that the expression of intention may be joint or, where one party provides the funds or is otherwise in a predominant position, may be unilateral in nature. With regard to the pertinence of the intention it was necessary to have regard to events which occurred following its expression. For example an intention expressed in contemplation of marriage may cease to be pertinent if the parties did not marry and subsequently separated.

[24] Counsel submitted that the rightness or wrongness of the immigration explanation should not have been treated as decisive. It remained to consider all the circumstances and decide whether the way in which title was taken to the bare section evinced a clear intention to share equally in both the land and what was developed on it and, even if there was a clearly expressed common intention, whether it remained pertinent upon separation some years later.
[25] There was considerably more evidence relevant to how the title was taken than that pertaining to the immigration aspect. It was common ground that the parties discovered the land together and reached a joint decision that it would provide a suitable base for them in the Haast area. This was in 1992. Significantly the agreement for sale and purchase was completed in joint names, albeit the deposit of $5,000 was paid on 3 July 1992 from Mr Belcher’s business account. On account of delay and difficulties in relation to settlement of the purchase a caveat was registered on 4 May 1993 to protect their interest. This too was in joint names.
[26] By contrast the resource consents required to erect a dwelling house and facilities for a venison recovery operation were sought from the Westland District Council in Mr Belcher’s name alone. These were obtained in January 1993. Likewise, when finance was required in late 1993 such was arranged through Mr Belcher’s bank with his helicopter used as security (since title to the land was still unavailable). A letter written at this time to the bank advised that Mr Belcher had sufficient funds in hand to pay $80,000 towards the building costs but would require a further $40,000 to complete the house and aircraft hangar. Finance was forthcoming.
[27] In April 1994 Landcorp was finally able to provide clear title. On 12 April Mr Belcher sent a facsimile to his Christchurch solicitor in these terms:

Regarding the land transaction at Okura between myself and Landcorp, do you think you could arrange to put Chris’ name on the title with mine.

Mr Belcher’s solicitor confirmed that this would be done. In an affidavit he made for the purposes of this proceeding the solicitor said his recollection was that Ms Baldwin was included on the title because Mr Belcher wanted her to stay permanently with him and because such registration was helpful for residency purposes. It may be that the affidavit was more significant for what it did not contain than what it did. There was nothing to suggest instructions were sought from Mr Belcher concerning what form of joint registration he wanted, much less that the distinction between joint tenancy and tenancy in common was explained.

[28] In any event the purchase was settled in mid 1994 using further funds from Mr Belcher’s business account. On 12 July 1994 the parties finally became registered joint owners of Mussel Point. A short time later a first mortgage in favour of the bank was registered.
[29] In cross-examination in the High Court it was put to Mr Belcher that the section was purchased in joint names because the property venture was a partnership. He responded that the section was but added that such was not his intention in relation to the improvements. This then was the extent of the evidence bearing on whether there was a clear or unequivocal expression of intention in relation to equal sharing of the property asset. It was of course for Mr Belcher to rebut the presumption which arose from registration of the joint tenancy. In light of all the evidence, did he do so?
[30] In our view the Judge was greatly influenced and perhaps distracted by the dispute concerning whether the joint tenancy arose for immigration purposes. We of course accept his finding adverse to Mr Belcher on that question, which was really inevitable given the documentary evidence confirming that Ms Baldwin obtained New Zealand residency on 10 July 1990. But we do not accept that such finding was necessarily decisive of the further issue whether the registration of title was indeed an expression of common intention that encompassed the land and the buildings upon it. It remained necessary to decide whether Mr Belcher had established that there was no unequivocal common intention or that it did not enure at the time of the parties’ separation.
[31] The Judge dealt with these aspects quite briefly. To recap he said:

I have no doubt that it was the intention of the parties that they jointly buy this section together and construct a house and hangar on it with the intention of equally sharing the property and their lives. I reject the allegations relating to immigration, and therefore the presumption is not rebutted on that basis.

We are not satisfied that this was a sufficient assessment of the relevant issues in the circumstances of this case. The case is perhaps unusual to the extent that the issue of intention falls to be considered over quite a period of time and with reference to both bare land and what was developed on it. In the end result we think there is a distinction to be drawn between the land on the one hand and the buildings erected on it on the other.

[32] In relation to the land we agree with the Judge’s conclusion that there was an unequivocal intention to share equally in it. Despite the fact that Mr Belcher paid the full purchase price from his business account, there is clear evidence that the acquisition of the land was a joint venture. The parties found the land and decided to acquire it together. The offer to purchase was in joint names. The instruction from Mr Belcher to his solicitor to arrange to put Chris’ name on the title coupled with the admission in cross-examination that the section was a partnership, all point towards a common intention. At least it cannot be said that Mr Belcher met the onus of demonstrating that the manner in which title to the land was taken did not demonstrate an intention to share in it equally.
[33] But we think the improvements on the land require further consideration. It is a significant step to conclude as the Judge did that not only was the section purchased jointly but that the intention of the parties was to construct improvements on it “with the intention of equally sharing the (whole) property and their lives”. The agreement to purchase was entered into many months before development on the land commenced. The instruction to Mr Belcher’s solicitor referred only to the inclusion of Ms Baldwin’s name on the title, without elaboration. And, the concession as to a partnership made in cross-examination was expressly limited to the land itself. We conclude that in the circumstances of this case any expression of intention by Mr Belcher was limited to the land itself, exclusive of the improvements upon it. Put another way for the reasons discussed Ms Baldwin had a reasonable expectation of a half share in the land.

Contributions to the development

[34] Helpfully the trial Judge considered the contributions of the parties to the building project in case his global common intention finding was disturbed. He accepted at the outset that Ms Baldwin had worked “long and hard in both the defendant’s business and in assisting in building the house”. In addition, she bore the brunt of the domestic duties. Attempts in the evidence of Mr Belcher to minimise the contributions of Ms Baldwin were roundly dismissed.
[35] The Judge then considered the extensive financial evidence which was adduced in an endeavour to establish the cost of the building project and the source of the funds. The Judge could not trace to his satisfaction the source of funds required in the period September 1993 to February 1994 to meet the building costs. These were established to be at least $133,000, probably in round terms $140,000. The Judge said:

It is for the defendant to rebut the presumption. In my view, he has failed to do so. On the information provided to the Court it is difficult to understand where the claimed $133,000 came from. If it did, in fact, come from income from the business then I am quite satisfied that the plaintiff made an equal contribution to that business during the relevant period.

[36] A little later the Judge expressed his conclusion in these terms:

... on the available evidence the contributions to it (the property) in physical terms were equal. The defendant’s position, which he has not established, is that the cash contribution came from the business. If it did, I am satisfied it could have only come from business income which was equally contributed to by the plaintiff during the relevant period. I find her contributions, direct and indirect, equal to the defendant’s.

Hence whether by an expression of common intention or on a contribution-based assessment, the Judge was satisfied that equal sharing was appropriate in relation to the Mussel Point property. Ms Baldwin made no claim against Mr Belcher’s business assets which comprised essentially plant and equipment, including the helicopter. However, the helicopter hangar and venison chiller were improvements on the land which were therefore included in the claim.

[37] With reference to the source of the funds for the building costs we do not share the Judge’s concern as to the adequacy of the evidence. Very considerable documentary material was produced in relation to this aspect. It included a schedule which identified individual invoices for building costs to a total of $118,037.66. In this Court, and we think below, there was essential agreement between counsel that the total building cost was about $140,000, of which $60,000 was obtained on loan from the bank, $9,000 or $10,000 was contributed by Ms Baldwin and the balance came from Mr Belcher’s business account. This analysis is sufficient in our view for present purposes.
[38] Arising from the difficulty in tracing the source of all the funds the Judge made the observation that Mr Belcher had failed to “rebut the presumption” seemingly in relation to establishing the extent of contributions from the business account. There was no presumption which Mr Belcher was required to meet in this regard (as opposed to in the context of the joint tenancy registration). Proof of contributions lay with both parties since both claimed on a constructive trust basis. Almost ten years on it was hardly surprising that an exact tracing was not possible. But the general picture was reasonably clear and was not the subject of dispute between the parties.
[39] Rather the contest lay in the area which the Judge characterised as the physical contributions of the parties. He was satisfied that these were equal. We are satisfied there is no reason to disturb that finding.
[40] The case was unusual on account of the physical ability and commitment of Ms Baldwin. Mr Belcher lived an outdoor life. The helicopter was used for a range of flying activities. These varied from ferrying whitebaiters in remote areas to search and rescue work, with aerial deer shooting and recovery being the backbone of the business. Venison was bought and sold with the purpose-built chiller used for its storage. Ms Baldwin became a highly competent deer shooter. But she was equally able to turn her hand to building tasks. The builder who assisted with the construction of the Mussel Point house deposed and the Judge accepted that the parties’ contributions by way of assistance to him were about equal in terms of both effort and ability.
[41] By the same token Mr Belcher brought expertise and experience to the building project. He began life as a maintenance fitter and had significant business and practical experience to call upon. The impression conveyed by the evidence is that both parties worked hard throughout their relationship and, in particular, in relation to the establishment of the Mussel Point property. The endeavour made to minimise Ms Baldwin’s contributions perhaps rebounded against Mr Baldwin when the need to assess matters in the round arose.
[42] The case was one which required a general assessment of the history of the relationship in order to place contributions in a meaningful context. When the parties met Ms Baldwin had very limited resources, essentially US$5,800 in travellers cheques. Mr Belcher owned a house and had a half share in a deer recovery business. Such disparity was only to be expected given the difference in ages and the fact that Ms Baldwin was a tourist in New Zealand.
[43] Mr Belcher also had $20,000 invested with his solicitor’s nominee mortgage company. This was uplifted at about the time Ms Baldwin obtained New Zealand residency and was at one point loaned to her in order to demonstrate that she was in a financially secure position. Subsequently it was expended on business or general living expenses. Likewise between 1994 and 1996 Mr Belcher inherited $16,823 from one estate and $4,528 from another. There was also the sum of $35,000 which remained from the sale of the Karamea property after the purchase of Mr Belcher’s son’s share in the business. Again these amounts were not kept separate but rather applied to business and living expenses.
[44] Although the profitability of the business varied greatly from year to year on account of fluctuating operating expenses, the gross income figures were typically substantial. Financial statements for each of the years from March 1990 to March 1998 were produced. In six of the years the income was over $100,000, being more than $130,000 in 1991 and 1996. In June 1992 Mr Belcher qualified for national superannuation. This money was also committed to living expenses.
[45] With reference to Ms Baldwin’s separate income she was paid $17,500 in the year to March 1994 for contract shooting. The Judge found that this transaction was probably tax motivated. In any event the money was loaned back to Mr Belcher’s business and a balance of $13,000 remained owing to Ms Baldwin at separation (although she made no claim to it). In the years ended March 1996 and 1997 there were payments of $10,200 and $1,372 to Ms Baldwin for contract shooting. She also derived some income from conducting aerobic classes in Haast but the sums involved were not significant.
[46] Payments in relation to the mortgage of $60,000 were met from the business account. Substantial repayments to the bank were achieved. In November 1996, shortly before the parties separated, an additional $28,000 was borrowed for helicopter repairs. Ms Baldwin agreed to the further advance. Even so at the date of separation in January 1997 the mortgage debt was only $18,986.
[47] This general financial information was in our view important. It indicated the extent to which the parties were at different stages in their lives during the term of their relationship. Mr Belcher enjoyed an established asset position. Ms Baldwin did not. The figures also indicated the extent to which capital introduced by Mr Belcher and income from the helicopter business dictated what was achieved in a material sense. The land cost and about $70,000 of the building costs were met through the business account. In addition the house mortgage of $60,000 was repaid through the business account. The sum owed at separation, about $19,000, reflected the cost of helicopter repairs effected a month or so earlier rather than the building debt.
[48] We think this dimension of the case was not recognised, or sufficiently recognised, in the Judge’s finding of equal contributions. It is clear that without the capital injections and the contribution made by Mr Belcher in introducing the business infrastructure, the helicopter in particular, this couple would not have achieved the material situation which existed by the date of their separation. This is not to diminish the wholehearted contribution which Ms Baldwin made to the running of the business and otherwise during the relevant eight year period. Rather it is to recognise the particular context in which that contribution was made.

Revised assessment of contributions

[49] For these reasons the contributions finding must be reconsidered. The starting-point is that Ms Baldwin had a reasonable expectation to a half interest in the land, including its subsequent development by landscaping and planting. The more difficult question is the assessment of her contribution to the buildings on the land, the house and associated facilities.
[50] Arithmetical precision is neither attainable nor necessary. Contributions may be direct or indirect, and may be financial contributions or in the form of services. To qualify contributions must assist in the acquisition, improvement or maintenance of the relevant property asset. They must clearly exceed the benefits which the relationship itself conferred upon the claimant. As to these matters see Lankow v Rose, the judgments of Hardie Boys J at 282 and Tipping J at 295 in particular.
[51] Ms Baldwin’s financial contributions to Mussel Point amounted to no more than $10,000. In addition she wholeheartedly contributed services to the building and subsequent improvement of the property. She also contributed to the running of the business which in turn generated the income required to pay for a substantial part of the building cost and to reduce the bank mortgage.
[52] In our view Ms Baldwin’s direct and indirect contributions to Mussel Point are recognised by fixing her interest in that property at a one-third share. This includes allowance for the full one half share she has in the land (for reasons already discussed). In other words the one-third assessment is after an increase has been made to account for her greater interest in the land component.

Disposition

[53] In the High Court the Judge made an order for sale of the property coupled with a direction that the net proceeds be divided equally. It followed that Ms Baldwin participated in any increase to the value of Mussel Point from January 1998, the date of separation. Accordingly the question of interest did not arise for consideration.
[54] In this Court Mr Belcher’s case was put on the basis that he wished to have the opportunity to buy out Ms Baldwin’s interest. To that end a valuation report was provided dated 15 October 2002, being about three months subsequent to the High Court hearing. The valuer who prepared it was of the opinion that the Mussel Point property was worth $205,000.
[55] Mr Tait, however, did not consent to the report being read. Subsequent to the hearing he filed a memorandum which contained the opinion of a real estate agent that property prices in the Haast area had lifted markedly since October 2002. Moreover, a revised capital value of the property as at 1 September 2002 indicated a value of $220,000, being land value $29,000 and improvements $191,000.
[56] In these circumstances it is not possible to make final orders relevant to the buy-out possibility. If such is to occur the parties will need to reach agreement concerning the value of Mussel Point. Thereby Ms Baldwin will participate in the increase in the value of the property so that again the question of interest will not arise. For the purpose of calculation of Ms Baldwin’s entitlement a reduction for the mortgage liability will be necessary at the figure owing as at the date of separation.
[57] Alternatively, if the property is to be sold then the directions made in the High Court shall stand, save that the net proceeds of sale would be divided as indicated in this judgment. In either case leave is reserved for counsel to apply to the trial Judge in the event of difficulty arising in relation to final disposition of the case.
[58] For the above reasons the appeal is allowed to the extent that Ms Baldwin’s interest is fixed at a one-third share. As discussed and foreshadowed in the course of counsel’s submissions the issue of costs is reserved. The appellant may file a memorandum within five working days and the respondent shall have a similar time within which to reply.

Solicitors:
Jonathan McCarthy Lawyer, Christchurch for Appellant
Malley & Co, Christchurch for Respondent