Nickel v Nickel [2005] WSSC 26 (18 November 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

JOHN WILLIAM NICKEL
formerly of Aleisa, and lately of Sydney, Australia, Regional Manager Australia/Tonga.
Plaintiff

AND

ALISA VIOLA NICKEL
of Vaivase, c/- SPREP, Secretary.
Defendant

Counsel: R Drake of plaintiff
R Papalii for defendant

Hearing: 30 August 2005
Submissions: 06 September 2005
Judgment: 18 November 2005

JUDGMENT OF SAPOLU CJ

Factual background

The plaintiff and the defendant were married as husband and wife on 06 May 1982. In 1997 their marriage broke down and in 1998 they separated. On 23 January 2003 they were divorced. They have three children aged 20, 17 and 8 years from their marriage. The present proceedings are concerned with the division of only part of their matrimonial properties. They appear to have already sorted out their other matrimonial properties. So not all of what were their matrimonial properties are included in the present proceedings. In consequence the evidence did not really extend to those other matrimonial properties and how they were acquired or disposed of. The only matrimonial properties which are the subject of the present proceedings are the land at Lotopa together with improvements thereon and the land at Aleisa.

At an early stage of these proceedings, the parties were able to reach an out of Court settlement on how to deal with the property at Lotopa. It is therefore not possible to go into detail or make any findings of fact in respect of that property. Suffice to note here, insofar as it is relevant, that the plaintiff agreed to transfer his interest in the Lotopa property to the children of the marriage with the defendant retaining an interest in the same property. The Lotopa property has an area of just under a quarter of an acre. Given the out of Court settlement in respect of this property, it is therefore no longer an issue in these proceedings. That leaves only the property at Aleisa.

In June 1994 the plaintiff, the defendant, and a close friend of the plaintiff purchased a block of land of three acres at Aleisa. As it appears from the documentary evidence, the land was registered in the names of all three parties as tenants in common in equal shares. In 1999, after the plaintiff and the defendant had separated in 1998, the land was sub-divided into two halves and one half of the land was conveyed to the plaintiff’s friend as his share of the land while the other half was to be conveyed to the plaintiff and the defendant as their share of the land even though the parties were supposed to be tenants in common in equal shares. No issue was made of this. I, therefore, say no more about it.

The half share of the three-acre block which was to be conveyed to the plaintiff and the defendant was further sub-divided into two parcels of equal areas at the same time the three acre block was sub-divided into two halves. These are parcels 1192 and 1199. Parcel 1192 has a public road frontage whereas parcel 1199 which is a rear section has no public road frontage. Parcel 1192 also has a better view than parcel 1199. It would appear that the purpose of the sub-division of the half share of the plaintiff and the defendant from the original three acre block was to convey one parcel of land to the plaintiff and the other parcel of land to the defendant. The problem is that both want parcel 1192 because of its public road frontage and better view than parcel 1199. Neither party is willing to let the other party have parcel 1192. They are at a deadlock. Apparently the previous solicitors for the plaintiff had prepared two deeds of conveyance to transfer parcel 1192 to the plaintiff and parcel 1199 to the defendant but the defendant has refused to sign both deeds as she claims to be entitled to parcel 1192. The plaintiff is therefore seeking an order for partition of the land into parcels 1192 and 1199 and for a further order for the defendant to sign the deeds transferring parcel 1192 to the plaintiff and parcel 1199 to herself. Neither party has requested a sale of the land under s.140 of the Property Law Act 1952 (NZ) which still applies in Samoa.

Submissions of counsel

In her written submissions in support of the claim by the plaintiff to have parcel 1192 conveyed to him, counsel for the plaintiff submits that: (a) the plaintiff contributed NZ$10,000 to the purchase price of the land whereas the defendant contributed NZ$8,000; (b) the plaintiff and his friend shared the costs of conveying the original three acre block to the plaintiff, the defendant, and the plaintiff’s friend; (c) the plaintiff and his friend also shared the survey costs for sub-dividing the three acre block into a half share for the plaintiff’s friend and for further sub-dividing the half share of the plaintiff and the defendant into parcels 1192 and 1199; and (d) it was the plaintiff who was responsible for the costs of bringing onto the land a pipe for running water. Counsel for the plaintiff also submits that the estimated difference in value between parcels 1192 and 1199 would be about $10,000. However, no evidence was adduced to support this estimated difference in value between the two parcels.

I place no weight on the clearance and cultivation of the land by the plaintiff with food crops in the past as a contribution to the land. Those food crops were not permanent but short term crops. They have long since been harvested and consumed or sold. They no longer exist on the land and the plaintiff had ceased cultivating the land for a long time. Generally, land in Samoa even if cleared and cultivated would revert to bushland if left to lie idle for too long. I also place no weight on the small Samoan fale built by the plaintiff on the land. This appears to be a faleo’o or hut. It is of insignificant value and is not a material contribution to the land.

In the case of Belcher v Baldwin [2003] NZCA 116 cited by counsel for the plaintiff and which was concerned with a de-facto relationship property dispute, Panckhurst J in delivering the judgment of the New Zealand Court of Appeal says at paragraph [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 maters see Lankow v Rose, the judgments of Hardie Boys J at 282 and Tipping J at 295 in particular.”

The clearance and cultivation of the land with food crops would not be contributions for the acquisition or maintenance of the land. They might have been contributions which went to the improvement of the land. However they were only short term improvements and have long ceased to exist. The faleo’o or hut built on the land would also not be a contribution in the acquisition of the land. I would also not regard it as a contribution in the maintenance of the land. I need not therefore go further to the other consideration mentioned by Panckhurst J Belcher v Baldwin for a contribution to qualify.

In support of the defendant’s claim for parcel 1192 to be conveyed to her, counsel for the defendant in her written submissions refers to the financial contribution of NZ$8,000 made by the defendant to the purchase price of the land. Counsel also refers to developments which the defendant is said to have carried out on parcel 1192 since September 2003 such as cultivating parcel 1192 with vegetables like tomatoes and cabbages and with crops like taro, taamu and bananas. These are of course all short term. I would expect that any tomatoes, cabbages, taros, taamus and bananas planted in 2003 or even the first nine months of 2004 would have been harvested and consumed or sold by now. The defendant also testified that she now resides in Sydney, Australia. So she would not be cultivating the land at Aleisa. If anyone is still cultivating the land at Aleisa it would probably be one of her relatives for that person’s own maintenance and upkeep. The defendant’s work history also shows that she is a lady who has always been employed in office work. I would therefore consider the defendant’s financial contribution of NZ$8,000 to the purchase price of the Aleisa land as her only relevant contribution. Other matters like the alleged sentimental value of parcel 1192 to the defendant and the children of the marriage because of the defendant’s developments on it and securing the future interests of the children are not contributions to the land.

Approach

As earlier mentioned, the present proceedings are concerned with only part of the parties’ matrimonial properties, namely, the Lotopa and the Aleisa properties. The parties had other matrimonial properties and it appears they have already sorted those out. At an early stage of these proceedings the parties reached an out of Court settlement with regard to the Lotopa property with the defendant retaining her interest in that property and the plaintiff agreeing to transfer his interest to the children of the marriage. When dealing with the Aleisa property, counsel focused on the parties contributions to that property. Very little indeed was said about what were the respective contributions of the parties to the acquisition, development or maintenance of the other matrimonial properties or how those properties have been disposed of as between the parties. Counsel may have had good reason for taking that somewhat restricted approach to the question of which of the parties should get parcel 1192. But it would have been helpful in determining that question if there was a clear picture of the respective direct and indirect contributions by the parties to the acquisition, development and maintenance of the other matrimonial properties and how those other properties have been disposed. In other words, given the present dispute as to how a particular matrimonial asset to which both parties had contributed substantially to its acquisition is to be divided between them, it would have been helpful to have a clear picture of the respective contributions of the parties to the other matrimonial properties which are not in issue in these proceedings and how they have been disposed. Be that as it may, I will approach the question for determination on the basis that counsel have chosen to approach it.

Partition

There is no dispute between the plaintiff and the defendant that their Aleisa property should be partitioned in half as already sub-divided into parcels 1192 and 1199. As co-owners being tenants in common in equal shares, either party is entitled to apply to the Court for an order for partition and the Court has no option but to direct a partition; inconvenience, or hardship, to the other co-owner is no ground for refusing a partition: Samoa Snack Food Ltd v Public Trustee et al (1995) (C. P. 230/92; Supreme Court judgment delivered on 28 June 1995). It is the plaintiff who has applied for an order for partition. The defendant does not oppose partition. The dispute is who should get parcel 1192.

Neither party has requested a sale in lieu of partition. So s.140 of the Property Law Act 1952 (NZ) which still applies in Samoa and which empowers the Court in certain circumstances to order a sale in lieu of partition if a co-owner requests a sale does not apply in this case.

Resolution of dispute

(a) The Aleisa property is to be partitioned into parcels 1192 and 1199 as it has already been sub-divided. This appears to be a mutually acceptable mode of partitioning the Aleisa property.

(b) Subject to what is to be said about the improvements on parcel 1192, a valuation report, and a monetary payment, I have decided that parcel 1192 should be conveyed to the plaintiff and parcel 1199 to be conveyed to the defendant. In terms of contributions to the Aleisa property, the total contributions made by the plaintiff is greater in value than the contribution made by the defendant. The plaintiff contributed NZ$10,000 to the purchase price of the Aleisa property whereas the defendant contributed NZ$8,000. The plaintiff and a friend shared in the costs of conveying the original three acre block to the plaintiff, the defendant, and the plaintiff’s friend. The defendant did not share in those costs. The plaintiff and his friend also shared in meeting the costs for sub-dividing the three acre block and then further sub-dividing the plaintiff’s and the defendant’s share of the land into parcels 1192 and 1199. The plaintiff was also responsible for the costs of bringing onto the land a pipe for running water. I am also conscious that in terms of the settlement reached by the parties in relation to the Lotopa property the defendant has retained an interest in that property whereas the plaintiff has none as his interest is now to be transferred to the children of the marriage.

(c) In respect of any cultivation on parcel 1192 by the defendant or any of her relatives, six months from today is allowed to harvest any vegetables or crops and then any remaining vegetables or crops to be removed. Possession of parcel 1192 will then be left to the plaintiff.

(d) A valuation report on parcels 1192 and 1199 is to be obtained from a valuer agreed upon by the parties or their respective counsel. Failing such agreement within 14 days, the matter is to be referred back to the Court and the Court will then appoint a valuer.

(e) The evidence and the written submissions of both counsel clearly suggest that the value of parcel 1192 is greater than the value of parcel 1199. The costs of the valuer in (d) are to be paid by the plaintiff from the sum by which the value of parcel 1192 given to him exceeds the value of parcel 1199 given to the defendant. The remainder of that sum is to be paid by the plaintiff or his agent to the defendant or her agent.

(f) At the time that the plaintiff or his agent pays to the defendant or her agent the remainder of the sum referred in (e), the defendant is to sign the deed conveying parcel 1192 to the plaintiff and the deed conveying parcel 1199 to herself.

The plaintiff is to pay his own costs and the defendant to pay her own costs.

CHIEF JUSTICE