Estranged brother has no claim to property, court finds
A man who cut ties with his brother 20 years ago over a building project that “turned to custard” has no claim to his property, a court has found.
In the High Court in Nelson in February, Dave Bary unsuccessfully argued the house he had built with his brother Aron Bary was still subject to a partnership - despite walking away from the project two decades ago.
According to the judgment, the brothers embarked on a partnership to build a house on the hill overlooking Tāhunanui in the late 1990s.
The project was difficult, with climbing costs and compliance problems. By 2001 the brothers were each paying extra to cover their liabilities.
Dave lived in the property, paying rent. Tensions between the brothers escalated, and eventually they were communicating by letter, trying to negotiate a way out of the partnership as they argued over costs.
In late 2001, Aron offered to buy Dave out. A few weeks later, when Dave hadn’t responded to his offer, Aron transferred the property from the partnership to himself, paying $220,000 for the property. Of this, $189,000 was a mortgage, which Aron took over.
The balance of $31,000 was held by the partnership’s accountants, the judgment noting this sum was insufficient to pay the outstanding debts on the house.
However, when Dave learned of the transfer, he objected. In correspondence, he stated the partnership had “turned to custard”, with his efforts on the project outweighing Aron’s.
Dave announced he would “walk away”: he wanted nothing more to do with his brother, and would pay nothing further towards the the property, he said.
“I believe I have been more than patient and have, until now, considered Aron’s interests at all times, this has not been reciprocated and I have had enough!!!” he wrote.
During the two decades that followed, the brothers had nothing to do with each other.
Aron tried to sell the property several times, but was stymied by the home’s compliance issues. In 2021, this was finally ironed out, and he once again put the property on the market.
However, when Dave learned the home was on the market, he lodged a caveat on the property to prevent a sale.
Dave submitted to the High Court that his brother failed to uphold his obligations to the partnership, which he must do before a sale.
Alternatively, he sought damages of $396,000 – half the home’s current value.
However, Aron said Dave had consented to him becoming the sole owner of the property, and was not entitled to a share of the property’s value.
Justice Grice found that although Aron had breached his partnership obligations by transferring the property to himself, this had resulted in no benefit.
With Dave’s letters saying he would “walk away”, by his lack of financial contributions, he had abandoned the partnership, and had no claim on the property, Justice Grice ruled.