Frustrated by Peter Mawhinney’s lack of co-operation in finalising proposals hatched nearly thirty years ago, Peter and Linda Alderton had the High Court force transfer of his ten per cent interest in their Waitakere lifestyle block in West Auckland.
Decades ago, Mr Mawhinney had grand plans for residential subdivision of what is primarily a forestry block on Anzac Valley Road. His long-running legal battles with first Waitakere City Council and later Auckland City eventually led to a 2016 High Court order blocking any further litigation for a five year period.
The Aldertons unwittingly became bit players in this legal morass following their 1997 purchase of a four hectare lot, part of Mr Mawhinney’s initial subdivision. They built a substantial home on site.
As part of purchase negotiations, it was agreed Mr Mawhinney could retain access rights over a sliver of the land, to enable further proposed subdivision.
This came to be recorded as interests associated with Mr Mawhinney holding a ten per cent undivided ownership share in the Aldertons’ four hectare block, with access rights spelt out in a separate document.
No progress was made on future subdivision after Mr Mawhinney’s neighbouring land was sold in a mortgagee sale.
This left Mr Mawhinney’s interests remaining as part owner of the Aldertons’ property, sharing in the improvements made, but not obliged to meet any costs.
Frustrated by Mr Mawhinney’s refusal to return the ten per cent holding, they asked the High Court for a Property Law Act order forcing a sale. Where appropriate, one co-owner can be forced to sell out to another co-owner at a fair and reasonable price.
Mr Mawhinney appears to be holding on to his access and ownership rights as some sort of leverage against new owners of his neighbouring land sold in the mortgagee sale, Justice Gault said.
His arrangement with the Aldertons was not intended to be a long-term arrangement, Justice Gault said. It was a short-term arrangement to accommodate further subdivision. Being no longer in control of neighbouring land, it was time 27 years on to bring the arrangement to an end, Justice Gault said.
Mr Mawhinney’s ten per cent interest in the Aldertons’ land is of no commercial value, according to valuers.
Justice Gault discounted claims by Mr Mawhinney that he still had a residual right in the neighbouring land and that any access right has considerable market value.
Rather than order a sale at no cost, Justice Gault ordered transfer of the ten per cent interest on payment of $10,000. Payment of more than a nominal sum recognised a benefit for the Aldertons; future complications they would otherwise face when trying to sell, should Mr Mawhinney’s interests as co-owner remain registered on the title.
Alderton v. Sixty-Six Auckland Ltd – High Court (13.08.24)
24.193