Bennett v Blackley - [2015] NZHC 1322

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-101 [2015] NZHC 1322

UNDER the Companies Act 1993

IN THE MATTER OF

the liquidators of COUNTRY LAND LIMITED (In Liquidation)

BETWEEN

STEPHEN KIM BENNETT AND

TIMOTHY JOHN HOYLE Plaintiffs

AND

AMANDA JUDITH BLACKLEY Defendant

Hearing: 14 April 2015

Appearances:

D James for the Plaintiffs
W Peters with J Welson for Defendant

Lady Chambers QC for David C Blackley (s 42 claimant) No appearance for WWP Trustees 2011 Ltd

Judgment:

12 June 2015

JUDGMENT OF ASSOCIATE JUDGE BELL

This judgment was delivered by me on 12 June 2015 at 11:00am
Pursuant to Rule 11.5 of the High Court Rules

………………………………………….
Registrar/Deputy Registrar

Solicitors:
Palmer Macauley (David James) Kerikeri, for the Liquidators
Wayne Peters Lawyers, Whangarei, for Mrs A J Blackley

Copy for:
Lady Chambers QC, Auckland, for Mr David C Blackley

BENNETT AND HOYLE v BLACKLEY [2015] NZHC 1322 [12 June 2015]

[1] The plaintiffs, liquidators of Country Land Limited obtained a judgment against Mrs Blackley on 29 September 2014 for $185,297. To enforce the judgment they filed a sale order on 20 November 2014. Mrs Blackley is the registered proprietor of four properties which might be sold to realise funds to pay the plaintiffs’ judgment. The properties are subject to caveats and notices of claim lodged by third parties. The liquidators have applied for them to be removed to allow the sheriff to sell the properties.

[2] The liquidators would prefer to have a property at 90 Tahunatapu Road, Parua Bay, Whangarei, sold as it is the most valuable and is likely to produce sufficient funds to clear prior interests and to meet the judgment. Mrs Blackley would prefer properties at Russell Road, Whangarei, and Rangitane Road, Kerikeri, to be sold first to pay off the judgment. Mr Blackley opposes execution against any of the properties. He has lodged notices of claim of interest under s 42 of the Property (Relationships) Act 1976 against all of the properties. He claims priority and says that all the properties are required to satisfy his claims under that act. As a fallback position, he says that if any property is to be sold it should be the Tahunatapu Road property. Further, on any sale, he should be paid from the proceeds an amount equal to that used to meet Mrs Blackley’s liabilities.

[3] There is also a property at Ohauiti, Tauranga, but no one proposes that it be sold. It is accepted that on any forced sale, a surplus would not be available after meeting a mortgage registered against the title.

[4] All parties agree that any sale by the sheriff should be by auction.

[5] The primary contest is between the liquidators enforcing their judgment and Mr Blackley, relying on his property relationship rights which are protected by s 42 notices lodged against each of the properties.

[6] The liquidators have lodged charging orders against the title of each property. It is not disputed that, as holders of charging orders,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bennett v Blackley

Details

AGLC: Bennett v Blackley [2015] NZHC 1322
Case: [2015] NZHC 1322
Decision Date: 12 June 2015

CaseChat Overview and Summary

The case of Bennett v Blackley involved the liquidators of Country Land Limited, who sought to enforce a judgment against Mrs Blackley by selling properties owned by her. The properties were subject to caveats and notices of claim by third parties, including Mr Blackley, who claimed priority over the properties under the Property (Relationships) Act 1976. The primary legal issue was whether the liquidators could remove the notices of claim and caveats to allow the sale of the properties. The court found that Mr Blackley's notices of claim took priority over the liquidators' charging orders but did not entitle him to the entire equity of the properties. The court held that the Tahunatapu Road property should be sold first to realise funds to pay off the judgment and protect Mr Blackley's interest. The court ordered the removal of the notices of claim and caveats, the sale of the Tahunatapu Road property, and that the proceeds of sale be held pending further orders regarding the division of relationship property in the Family Court.

Orders