Body Corporate 331094 v Marshall

[2024] NZHC 2029

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002669

[2024] NZHC 2029

BETWEEN

BODY CORPORATE 331094

Plaintiff

AND

I R & V P MARSHALL as trustees of the MARSHALL FAMILY TRUST

First Defendants

THE OFFICIAL ASSIGNEE

Second Defendant

Hearing:

24 July 2024

Appearances:

A J Steele and P S Kim for Plaintiff

No formal appearance for the defendants in opposition

Judgment:

24 July 2024

RESULTS JUDGMENT OF VENNING J

This judgment was delivered by me on 24 July 2024 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Glaister Ennor, Auckland Counsel:    A J Steele, Barrister, Auckland Copy to:           Defendants

BODY CORPORATE 331094 v MARSHALL as trustees of the MARSHALL FAMILY TRUST [2024] NZHC 2029 [24 July 2024]

[1]                The plaintiff Body Corporate seeks summary judgment against the first defendants as trustees of the Marshall Family Trust. Neither the first defendants nor the second defendant have filed any formal opposition to the application.1

[2]                 After hearing from counsel the Court is satisfied that the defendants have no reasonably arguable defence to the claim by the Body Corporate or to the orders sought. For those reasons the Court makes the following orders in accordance with the application dated 2 November 2023 as follows:

(a)granting the plaintiff summary judgment against the first defendants, as pleaded in the statement of claim for:

(i)A declaration that the plaintiff is subrogated into the first defendants’ right to be indemnified from the assets of the Marshall Family Trust to effect payment of the outstanding balance;

(ii)An order directing the sale of the following assets of the Marshall Family Trust as set out in the Schedule to the statement of claim to the extent necessary to pay the outstanding balance plus interest thereon pursuant to the Interest on Money Claims Act 2016:

(I)Unit 806 at The Landings, 8-10 Ronayne Street, Parnell, Auckland (Unit B8F and Accessory Unit 26, S26 Deposited Plan 331094 in Record of Title 12789);

(II)Unit 909 at The Landings, 8-10 Ronayne Street, Parnell, Auckland (Unit B9I and Accessory Unit 137, S137 Deposited Plan 331094 in Record of Title 127912);

1      The Court has been advised the first-named First Defendant died intestate after these proceedings were issued.

(III)Unit 613 at The Docks, 4 Dockside Lane, Auckland (Unit 613 and Accessory Unit 160 Deposited Plan 389269 in Record of Title 356965);

(IV)Unit 706 at The Docks, 2 Dockside Lane, Auckland (Unit 706 and Accessory Unit 192 Deposited Plan 389269 in Record of Title 356973); and

(V)Unit 707 at The Docks, 2 Dockside Lane, Auckland (Unit 707 and Accessory Unit 193 Deposited Plan 389269 in Record of Title 356974)

(together the Units)

(iii)Leave for the plaintiff to seek such other or further orders as may be necessary to effect the above orders for sale.

[3]                The plaintiff may seal judgment and a sale order in accordance with form E7 of the High Court Rules 2016 accordingly.

Costs

[4]                 The plaintiff BC 331094 is entitled to reasonable costs on a solicitor and client basis on the application.

[5]My full reasons will follow.

Venning J