Bank of New Zealand v Taleta

[2015] NZHC 2821

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004827 [2015] NZHC 2821

IN THE MATTER

of an Application for issue of Charging

Order

BETWEEN

BANK OF NEW ZEALAND Applicant

AND

HARRY FOHE TALETA Respondent

Date:  13 November 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 13 November 2015 at 10.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Sanderson Weir, Auckland.

BANK OF NEW ZEALAND v TALETA [2015] NZHC 2821 [13 November 2015]

Introduction

[1]      The applicant applied without notice for the extension of the effect of a charging order on land to which the respondent is beneficially entitled as a joint registered proprietor.

[2]       The  affidavit  in  support  of  the  application  did  not  explain  why  the application was not made on notice.

[3]      As I received the application on the last day on which the order could be extended, I granted the application.  I now give brief reasons.

Background

[4]      On 17 September 2013, the applicant obtained judgment in the Auckland

District Court against the first respondent in the sum of $36,452.96 including costs.

[5]      A charging order was then issued against the interest of the respondent in the property which he jointly owned with one other registered proprietor.  The charging order was registered on 13 December 2003.

[6]      The judgment remains unsatisfied and the applicant seeks its extension for two further years.

[7]      The respondent remains one of the two registered proprietors of the land.

Analysis

[8]      Rule 17.52 of the High Court Rules (Rules) provides:

17.52 Lapse of charging order after 2 years

(1) A charging order no longer binds the land affected and is treated as discharged after 2 years from the date of the charging order unless it is extended under subclause (2).

(2) The court may within that period, if it thinks just, extend the effect of a charging order for any necessary period.

(3) Subclause (1) does not apply if the charging order has led to a sale order, and a person registers any of the following in relation to the land under that sale order:

(a) an instrument of transfer: (b) a deed of conveyance:

(c) an assignment.

[9]      The charging order is, therefore, treated as discharged two years after the date of issue unless it is extended.  The Court may extend the effect of a charging order for any necessary period if it thinks just.

[10]     The application did not address the justice of any extension.  The affidavit in support explained that the applicant has not yet taken any steps towards applying for an order of sale of the land in order to give the respondent an opportunity to sell it and satisfy the judgment or make other arrangements to satisfy the judgment.  The respondent has not done so.

[11]     The application should have been more comprehensive and included details of the interaction between the parties on the issue.

[12]     Furthermore, the application should have been on notice.  In order for a Court to decide if it is just to extend an order, the respondent should have had the opportunity to be heard.

[13]     The affidavit is support recorded the deponent’s view that it would be just to extend the charging order for a period of two years to give the applicant time to decide what further steps would be appropriate to take.  However, given the charging order has been in effect for two years, such consideration should have taken place already.   I do accept, however, the premise which the applicant advanced to the effect that the respondent is being given on opportunity to satisfy the judgment to avoid an order for the sale of the land.

[14]     Were it not for the fact the charging order was to be deemed discharged if not extended on the day on which I received the application, I would have declined to

deal with the application until the respondent was given notice and further information had been provided.

[15]     The application did not provide the Court with sufficient information as to why the “necessary period” for the extension was two years.   However, as it is unclear whether there is any ability to extend the order on more than one occasion, I granted the application and extended it for two years. I did so in order to preserve the position.   The applicant is required to bring this decision to the attention of the

respondent who has leave to apply under r 17.44 of the Rules for relief.

Thomas J