Clark v Hansen

[2013] NZHC 874

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2011-454-396 [2013] NZHC 874

UNDER  s 339 Property Law Act 2007

BETWEEN  CHRISTINE ANNE CLARK Plaintiff

ANDWILIAM JOHN HANSEN AND ALEXANDER MCKENZIE GILCHRIST Defendants

Hearing:         18 April 2013

(Heard at Palmerston North)

Counsel:         R.O. Parmenter - Counsel for Plaintiff

N. Hughes - Counsel for Defendants

Judgment:      29 April 2013

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by me on 29 April 2013 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Solicitors:           Wadsworth Ray, Solicitors, PO Box 26-301, Epsom 1344

Daniel Overton & Goulding, Solicitors, PO Box 13017, Onehunga

Hughes Robertson Law, Solicitors, PO Box 2513, Wellington 6140

CA CLARK V WJ HANSEN AND AM GILCHRIST HC PMN CIV-2011-454-396 [29 April 2013]

Introduction

[1]      Before the Court is an application by the plaintiff filed 21 December 2012 to vary existing summary judgment orders made by this Court on 4 October 2011.

[2]      The present application is opposed by the defendants.

Background Facts

[3]      The plaintiff owns a one-half share in a 2.0234 hectare rural property at 80

Vista Road, Levin (“the property”) with the defendants and wants the property sold.

[4]      On 4 October 2011 His Honour Justice Miller in a judgment on that date made orders by way of summary judgment in this proceeding for the sale of the property.  He noted at para [2] of his judgment that, with one small exception, these orders were made by consent.  More on this aspect later.

[5]      It is important for the purposes of the present application to set out in full the detailed terms of those 4 October 2011 orders (“the original summary judgment orders”).  I now do so, the orders made being as follows:

[3]        The following orders were made:

(a)       Pursuant to s 339(1) Property Law Act 2007, that the parties’ property at 80 Vista Road, Levin being the land comprised and described in certificate of title WN951/1 (Wellington Registry) (the “land”) be sold and, subject to the terms hereof and the terms of their “partnership” in the land mentioned in the statement of claim, the proceeds be distributed between the co-owners;

(b)        Pursuant to s 339(4) of the Act, the following further orders:

(i)          That the land shall be placed on the market for sale as

from 29 October 2011 (“market date”);

(ii)       That the land agent instructed shall be Ms Jan Sparrow through Team HKH Limited, being the Harcourts franchise at the Levin Branch on that company’s usual terms except that there shall be an exclusion of liability to pay commission in the event that one of the parties hereto purchases the land;

(iii)       That, in accordance with the opinion of Mr BF Grant, registered valuer of Kapiti Valuations Limited (that the land has a market value of $845,000.00):

A.          The asking price shall be the market value of the land plus 10%, i.e. (say) $930,000.00; and

B.          The minimum selling price (at which all parties shall be required to sign the sale and purchase

agreement) shall be the market value of the land less 5%, i.e. (say) $800,000.00.

(iv)       The form of sale and purchase agreement to be used shall be Real Estate Institute of New Zealand and Auckland District Law Society Eighth Edition 2006(2) Agreement for Sale and Purchase of Real Estate or as the parties may agree otherwise.

(v)         Purchase by plaintiff or defendants:

a.At any time after the orders herein, any of the parties shall be able to give notice to the others of  an  intention  to  purchase  the  land  at  the market value on terms usually found in agreements for sale and purchase mentioned above (including a term for the payment of a

10%  deposit  and  with  settlement  one  month after entry into the agreement);

b.        Within 7 days of receipt of such notice, any other party may serve the others with a counter-notice to similar effect;

c.In the absence of such a counter-notice, the party having given notice shall, within 5 working days of the expiry of time for serving a counter-notice, enter into an unconditional agreement for sale and  purchase in  respect of  the  land  on  terms usually   found   in   agreements   for   sale   and purchase mentioned above (including the price at market value, a term for the payment of a 10% deposit and settlement one month after entry into the agreement);

d.        Upon service of a counter-notice:

each of the parties shall, within 48 hours of such service, deliver to the independent solicitor acting in the sale (named below) a  confidential note  stipulating the  price they will pay for the land; and

the party stipulating the highest price shall be entitled to buy the land; and

that  party  stipulating  the  highest  price shall enter into an agreement for sale and purchase at the stipulated price and, otherwise, on terms usually found in agreements for sale and purchase mentioned above (with payment of a 10% deposit and settlement one month after entry into the agreement).

(vi)       That the parties shall meet the land agent’s marketing costs and the costs of any subsequent valuation as mentioned below in the proportions of their ownership;

(vii)      The parties shall do all such things as are reasonably necessary to achieve the sale of the land, including:

A.         signing the agent’s listing forms;

B.        maintaining the land (including the buildings thereon) in reasonable condition;

C.     assisting the land agent in the promotion of the land   including   making   the   house   and   land available for open houses and interested party viewings and  presenting the  land  (including the buildings thereon) in a tidy condition inside and out when there are open houses and viewings; and

D.subject to any proper or legal objections to its form or terms, signing any agreement for sale and purchase for the land at a price above minimum selling price.

(viii)     In the event the land has not sold by 31 January 2012, the aforementioned valuer or his nominee shall be re- instructed for  the  purposes of re-assessing the  market value and the land shall be marketed from that time in accordance with the valuer’s refreshed determination;

(ix)       The independent solicitor acting for the parties on the sale shall be Mr GM Bilkey of Graham & Co, Solicitors, Mt Eden, Auckland;

(x)        Upon  receipt  of  the  settlement  monies  (including  the balance of any deposit) the independent solicitor acting on the sale shall be required to:

A.        Repay and discharge any mortgage(s) over the land;

B.        Apportion any amount repaid to any mortgagee to the appropriate party’s account;

C.        Pay any outgoings due in respect of the land such as land rates;

D.Balance and  apportion between the  parties all outgoings previously paid by one or other of the parties (including land agent’s marketing costs and the valuer’s costs) to the intent that all the outgoings which have been  paid  shall end  up being   shared   in   the   proportions   of   their ownership of the land viz.   25% to each of the defendants and 50% to the plaintiff;

E.        Apportion  all   selling  expenses  between   the parties in the proportions of their ownership of the land;

F.        Deduct  the  independent  solicitor’s  reasonable costs and apportion those in the proportions of their ownership of the land;

G.        Disburse   the   balance   to   the   plaintiffs   and defendants, after taking into account:

the    apportionments   required    by   the

“Property   Agreement”   dated   21   July

2006; and

the said sum of $50,000.00 to be held by Graham  &  Co  to  cover  the  plaintiff ’s claim for occupation rent and for costs, whether of a  mediation or otherwise as fixed by the Court or agreed.

(c)        That leave be reserved for either party to apply to the Court on 48

hours’ notice  to  vary  the  terms  of  these  Orders  (including  a

variation requiring the defendants to vacate the land) or for the resolution of a dispute as to the terms or effect of these orders.

(d)       Costs are reserved.

[6]      The exception noted at para [4] above concerned the amount of money to be held in trust by the independent solicitor to cover the plaintiff’s claim for occupation rent.  His Honour Justice Miller at para [2] of his 4 October 2011 judgment, said that he had directed this sum to be somewhat larger than the amount originally envisaged at a new total figure of $50,000.00 to cover, not only that claim for occupation rent, but also claims for costs whether of a mediation or otherwise as fixed by the Court or agreed.  This $50,000.00 amount to be held in trust was recorded at para (3)(b)[x][G] of the original summary judgment orders noted at para [5] above.

[7]      The  present  application  by  the  plaintiff  to  vary  the  original  summary judgment orders is brought pursuant to para [3](c) of those orders, which reserved leave for either party “to apply to the Court on 48 hours’ notice to vary the terms of these Orders.”

[8]      The specific variations sought by the plaintiff in her present application are as follows:

(a)       An  additional  order  is  sought  as  new  para  3(b)  of  the  original summary judgment orders that:

Pursuant to s 343(g) Property Law Act 2007, as a step the Court considers necessary or desirable as a consequence of the making of the above order under s 339(1) [for the sale of the property] that the defendants must vacate the land within 28 days of the date [of this variation order].

(b)Given  that  it  is  said  pursuant  to  clause  3(b)(iii)  of  the  original summary judgment order that the land now has a new market value of

$825,000.00 (as opposed to its original market value of $845,000.00), the asking price pursuant to para [3](b)(iii)(A) is to be reduced to

$865,000.00   and   the   minimum   selling   price   pursuant   to   para

[3](b)(iii)(B) is to be reduced to $785,000.00.

(c)       The form of sale and purchase agreement to be used pursuant to para

[3](b)(iv) of the original summary judgment orders is now to be the

Real  Estate  Institute  of  New  Zealand  and Auckland  District  Law Society Ninth Edition 2012 Agreement for Sale and Purchase Agreement of Real Estate or as the parties may agree otherwise, and not the earlier Eighth Edition provided for in the original summary judgment orders.

(d)The provisions of para [3](b)(viii) in the original summary judgment orders regarding what is to occur if the land had not been sold by 31

January 2012 are to be deleted, and in the proposed new orders the following substituted:

(viii)      In the event the land has not sold by 30 June 2013, the asking price and the minimum selling price abovementioned [are to] be reduced by 5%.

(e)      Finally, the retention moneys to be held in trust by the independent solicitor to cover the plaintiff’s claim for occupation rent and other costs (noted at $50,000.00 in the judgment of His Honour Justice Miller dated 4 October 2011 and provided for in para [3](b)(x)(G) of the original summary judgment orders) are now to be increased to the sum of $70,000.00.

[9]      The plaintiff ’s application to vary the earlier summary judgment orders as I

have noted is opposed by the defendants who filed a Notice of Opposition on 25

March 2013.    The  grounds on which  the defendants oppose the making of the amended orders are set out in that Notice of Opposition as:

(a)      The plaintiff is either aware or has not disclosed that her agent has not had anyone inspect the property.

(b)The valuation evidence supplied by the plaintiff is unreliable as no inspection has taken place.

(c)       Appearing in the affidavit of William John Hansen filed herein.

Counsels’ Argument and My Decision

[10]     The first  aspect  to  be  considered  here is  a jurisdiction  one.   A possible question arises on what basis can this Court vary the original summary judgment orders made by His Honour Justice Miller, orders which were made essentially with the consent of all parties?

[11]     On this, as I have noted above, those orders at para [3](c) actually reserve leave for either party to apply to the Court on 48 hours notice either to vary their terms (including a specific variation to seek an order requiring the defendants to vacate the land) or for the resolution of any dispute as to those terms or as to the effect of the orders.   That is precisely what has occurred here with the plaintiff’s present variation application.   The parties clearly intended and agreed that there would be a power for this Court to vary the terms of the original summary judgment orders on appropriate application.  I am satisfied therefore that this Court does have jurisdiction to vary the earlier summary judgment orders.

[12]     It needs to be borne in mind, however, that the variation application before the Court is one brought effectively under Part 12 High Court Rules to which the provisions of r 12.2 must apply. This rule provides:

12.2      Judgment when there is no defence or when no cause of action can succeed

(1)       The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[13]     The principles of summary judgment which must also apply here on the present  variation  application  have  been  summarised  by  the  Court  of Appeal  in Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26]:

The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1; (1986) 1 PRNZ 183 (CA), at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or

other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331; [1979] 3 WLR 373 (PC), at p 341; p 381. In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

[14] To summarise what I have noted at [8] above, in her present application the plaintiff essentially seeks to vary the earlier summary judgment orders in five respects:

(a)      Imposing a requirement that the defendants vacate the property now.

(b)Reducing the selling price for the property on the basis of what she says is a reduced market valuation.

(c)      Altering the form of Agreement for Sale and Purchase to be used for any sale to provide for a later addition of the Real Estate Institute and Auckland District Law Society form.

(d)Imposing an adjusted mechanism for reduction of both the asking price and minimum selling price for the property in the event that it has not sold by 30 June 2013.

(e)      Increasing the fund to be retained should the property sell to satisfy

the plaintiff’s claim to “occupation rent”. [15] I now deal with each of these aspects in turn. Requirement for the Defendants to Vacate the Property

[16]     The plaintiff’s application here is based on s 343(g) Property Law Act 2007

which states:

343      Further Powers of Court

A further order referred to in s 339(4) is an order that is made in addition to an order under s 339(1) [for a sale of a property] and that does all or any of the following:

....(g)     provides for, or requires,  any other  matters or  steps the  court considers necessary or desirable as a consequence of the making of the order under s 339(1).

Here the s 339(1) Property Law Act 2007 order is one for the sale of the property and the division of the proceeds among the co-owners.

[17]     Mr Parmenter for the plaintiff, in his submissions on this aspect, claimed that it is now 5½ years since the plaintiff was in his words “excluded from the property” and a year and a half since the original summary judgment orders for the sale of the property were made.   The plaintiff contends that the defendants have simply obstructed any attempts to be commercial and sensible about selling the property and she states that it is this factor of obstruction which leads her to seek an order that they be required to vacate the property now.

[18]     Further,  in  Mr Pamenter’s  written  submissions  before me he  specifically contended that:

The defendants are drowning in debt and depression .... but they are dragging Ms Clark down with them ..... and that sympathy for the defendants cannot overcome the obvious justice in requiring the defendants to move out from the property so that the plaintiff (and the land agents can have a fair attempt at sale).

[19]     Significantly in my view the plaintiff does not argue here that the defendants are failing first, to maintain the property or keep it in reasonable order or secondly, to keep it secure.  Her principal argument appears to be a claim that as occupants of the property they are obstructing attempts to have it sold.

[20]     On this aspect, however, there is a significant conflict in the evidence which has been provided to the Court.  On the one hand, the plaintiff and the appointed real estate agent seem to suggest that the defendants are not co-operating to achieve a possible sale.  On the other hand, the defendants state quite categorically that this is not the case, that they have endeavoured to communicate with the appointed real estate agent in the past, and throughout their view has been that both the depressed property market in the Levin area and the few ineffective attempts at marketing the property undertaken by the appointed agent, are solely the reason for there being no sales interest up to now.

[21]     Clearly on the contested affidavit evidence alone which is before me, this particular aspect cannot be conclusively determined here.

[22]     There is, in my view, however, an additional aspect which militates against the making of an order for the defendants to vacate the property now.  This relates to security and maintenance aspects for the property.   If the defendants were to be required to vacate then this semi-rural property in my view would require significant security arrangements to be made to protect what is the substantial home and improvements which form part of the property.   Further, issues of ongoing maintenance and operation of the property, in particular through the coming winter months, would require the input of third parties and likely additional cost.   As I understand  it,  all  these matters  are currently attended  to  by the defendants  and significantly the plaintiff has raised no issue concerning the general care of the property by the defendants.

[23]     As part of her application seeking an order that the defendants vacate the property, the plaintiff suggests that this is partly so that she can “stage” the house on the property for sale.  While there may be some merit in that suggestion, it would clearly lead to additional expense for the parties and, in what is acknowledged to be a present depressed sale market, it may achieve little.

[24]     The overriding aspect here in my view is that the real reason the plaintiff seeks an order to have the defendants removed from the property as noted by Mr Parmenter in his submissions is this “factor of obstruction” by the defendants to a possible sale of the property.   But as noted above, in my judgment for summary judgment purposes here, this has not been clearly established and, given particularly aspects concerning security of the property and the need for its general ongoing care and maintenance, I am satisfied that there should be no order made at this point requiring the defendants to vacate the property.

[25]     I reach this conclusion notwithstanding the stipulation at para [3](c) of the original summary judgment orders made by His Honour Justice Miller in which he reserved leave for either party to apply to the Court to vary the terms of the orders and particularly to include “a variation requiring the defendants to vacate the land”. For the reasons outlined above however, in my view that variation is not appropriate at this point.  It could be that this situation might change in the future and, a possible variation requiring the defendants to vacate the property at some stage might prove

to be appropriate.  But that is not the case now.  And the leave provision outlined at para [3](c) of the original summary judgment orders is to continue to apply to meet any such changed situation in the future.

[26]     This disposes of the first variation order sought by the plaintiff which is rejected.

Reduction in the Property Asking Price and Minimum Selling Price

[27]     In the original summary judgment orders as noted above, para [3](b)(viii)

stated specifically:

(viii)      In the event the land has not sold by 31 January 2012 the aforementioned valuer or his nominee shall be reinstructed for the purposes of reassessing the market value and the land shall be marketed from that time in accordance with the valuer’s refreshed determination.

(emphasis added)

[28]     Those original summary judgment orders at para [3](b)(iii) noted also that the registered valuer Mr BF Grant had assessed a market value for the property at

$845,000.00 and accordingly the asking price agreed between the parties was to be that market value plus 10% being $930,000.00 with a minimum selling price to represent the market value less 5% being $800,000.00.  It is those figures which the plaintiff now seeks to vary, given that she has provided what she says is an updated registered valuation by Mr Grant dated 4 December 2012 which assesses a reduced market value for the land from $845,000.00 to a new figure of $825,000.00.  On this basis, the plaintiff seeks a new asking price for the property at an increase of only

5% (and not the previous increase of 10%) above the revised market valuation to a figure of $865,000.00 (as opposed to the previous figure of $930,000.00) with a minimum selling price reduced to $785,000.00 (as opposed to the previous figure of

$800,000.00).

[29]     The defendants oppose any change to the asking and minimum selling prices for the property which they note the parties consented to in the original summary judgment orders.

[30]     In addition, the defendants provide to the Court a further valuation of the property dated 23 March 2013, which they have obtained from a different valuer, Mr AJ Wagenaar of Direct Valuation.   This assesses a current market value for the property of $866,000.00. They note also that Mr Wagenaar inspected the property on

20 March 2013 before completing his valuation, whereas Mr Grant’s 4 December

2012 valuation, referred to at para [28] above, was simply a desk-top assessment and did not involve a further inspection of the property by Mr Grant.

[31]     The defendants contention is that the reason the property has not sold has not been  a question  of price but  this  has  simply related  to  the currently depressed property market in the area and the fact that no  one was interested in purchasing it. The defendants state that the valuation undertaken by Mr Wagenaar gives a very good current indication of what the property should sell for, and they therefore oppose any proposed price reduction structure here.

[32]     The starting point in any consideration of a possible price reduction for the property here must be  the specific  provision in the original  summary judgment orders contained in para [3](b)(viii) which I have noted at para [27] above.   This provision importantly was consented to by the parties at the time, and clearly provided for the situation where the property had not sold by 31 January 2012 (which is the case here).  In that event, the provision stated that the valuer Mr Grant or his nominee shall be re-instructed for the purposes of re-assessing the market value and the land shall be marketed from that time in accordance with Mr Grant’s refreshed determination.   That provision was emphatic and was agreed to by all parties at the time, no doubt for what were seen as sensible reasons.

[33]     The property clearly did not sell by 31 January 2012 (which is now nearly 15 months ago) and in my view the mandatory provisions of this clause [3](b)(viii) of the original summary judgment orders must come into play.

[34]     It was clearly on this basis as I see it that the plaintiff re-instructed Mr Grant “for the purposes of re-assessing the market value” of the property.  In response, he completed his formal valuation on 4 December 2012.  As outlined above, Mr Grant notes that a desk-top assessment only was provided as “access to the property has

not been possible.”  He states at p 4 of the valuation that his report is “for market purposes” and at p 1 that his instruction was “to provide an estimated updated assessment of the property.”   It is acknowledged that he did not again visit the property.  In my view however this is of little moment.  His valuation was carried out on the basis that there had been no major changes or alterations to the property nor had it been detrimentally affected in any way since his original valuation.  There is no evidence before the Court to the contrary.  Nor is there any evidence of any kind that any significant improvements had been made to the property since the earlier valuation.

[35]     In my view, the only proper conclusion that can be reached here is that the revised valuation of Mr Grant, which was clearly envisaged by the parties when they consented to the original summary judgment orders, must come into play here and in accordance with para [3](b)(viii) “.... the land shall be marketed from that time in accordance with the valuer’s (Mr Grant’s) fresh determination.”

[36]     I find therefore that a variation of the figures in para [3](b)(iii) of the original summary judgment order should now be made to the following effect:

(iii)That,  in  accordance with  the opinion  of Mr BF Grant,  registered valuer of Kapiti Valuations Limited (that the land has a market value of $825,000.00):

A.       The asking price shall be the market value of the land plus

10% (say) $907,500.00; and

B.       The minimum selling price (which all parties shall be required to sign the sale and purchase agreement) shall be the market value of the land less 5% (say) $784,750.00.

Orders to this effect are now made.

[37]     Nothing has been placed before me by the plaintiff however to suggest that there should be a variation in the percentage increase above the market valuation to

assess the asking price for the property such that this percentage is reduced as the plaintiff has requested from 10% to 5%.  The parties had originally consented to an asking price 10% above the assessed market value.  I see no reason here to alter this arrangement unless the parties have agreed otherwise, which they have not done.  In any event, the critical figure in my view is likely in this case to be the minimum selling price. Any asking price is simply viewed by potential purchasers as just that.

[38]     That disposes of the second aspect of this application which has basically succeeded to a large extent.

[39]     As a post script on this particular aspect, however, I do note that on p 4 of his

4 December 2012 update valuation, Mr Grant states:

The  values  contained  in  this  report  may  change  in  the  future  due  to  market conditions and changes to the state of the property.

[40]     This seemingly obvious  comment from the valuer, however, in my view needs  to  be  kept  in  mind  by  the  parties  in  the  future.    In  this  regard,  I  note particularly the provisions of clause [3](c) of the original summary judgment orders which will continue to apply here.  These grant leave to either party to apply to the Court on notice to vary the terms of any of the orders.   This must include those asking and selling price amounts specified in the summary judgment orders, which may well require further consideration in the future should circumstances change again.

Variation in the Standard Agreement for Sale and Purchase Form to be Used

[41]     No argument or opposition to this proposed variation was advanced before me.

[42]     It seems sensible that the updated 2012 edition of this standard agreement should replace the earlier 2006 edition provided for in para [3](b)(iv) of the original summary judgment orders.

[43]     Effectively unopposed, an order to this effect is now made.

[44]     In this part of the plaintiff’s application she seeks an amendment to para [3](b)(viii) of the original summary judgment orders by the substitution of a new order that, in the event the property has not sold by 30 June 2013 (which is only a little over two months away) the asking price and the minimum selling price for the property which I have noted above are each to be reduced by 5%.

[45]     This differs from the original orders under para [3](b)(viii) which stipulated that in the event the property was not sold by 31 January 2012 the original valuer Mr Grant or his nominee was to be reinstructed to reassess the market value and the property was then to be marketed from that time in accordance with his refreshed determination.

[46]     As noted above, that refreshed determination by Mr Grant has taken place. Orders have been made in this judgment for a present reduction in the asking and minimum selling prices in accordance with his recommendation.  That is in line with what the parties agreed in the original consent orders.

[47]     In my view, however, at this point it is not appropriate to require a further reduction in those prices by a fixed percentage rate of 5% simply if the property does not sell by a rapidly approaching date in the future.   That, in my view, is more particularly the case with the present application, where the plaintiff is suggesting that this 5% reduction should kick in by 30 June 2013 which is only a little over two months away.

[48]     It is my view that the provisions of para [3](c) of the original summary judgment orders, which grant leave to either party on notice to approach the Court for any variation order thought appropriate (and which are to remain) are sufficient to  meet  the  situation  if  further  amendments  to  the  pricing  of  the  property  are required.

[49]     For these reasons, I reject this part of the plaintiff’s present application.

[50]     In this portion of her application the plaintiff seeks an order that the retention amount to be held in trust by the independent solicitor to cover the plaintiff’s claim for occupation rent and other costs (noted at $50,000.00 in the original summary judgment orders) is to be increased to the sum of $70,000.00.   The defendants however oppose any such increase.

[51]     The primary reason advanced by the plaintiff for an increase in this retention amount relates principally to issues of timing and the delays in achieving a sale of the property which have occurred here.  At the original hearing before His Honour Justice Miller, I am told the claim for occupation rent was calculated as at 31 August

2011 at $43,618.00 with weekly rental after that date calculated at $237.00.  From 1

September 2011 to the end of June 2013 is a further 22 months.   The plaintiff contends that for this period an increase in the claimed retention of some $22,600.00 would be required based on the earlier weekly rental figure.

[52]     In addition, the plaintiff maintains that extra costs and interest have been incurred, including real estate agent’s advertising costs, valuer’s costs, legal costs and interest and a payment the plaintiff claims she made of nearly $800.00 under the defendant’s mortgage to prevent mortgagee recovery action.   As against these amounts, it is noted that the defendants have paid outgoings on the property (principally rates and insurance) over the period, but these the plaintiff argues would not be significant amounts in the overall scheme of things.

[53]     In  response,  counsel  for  the  defendants  before  me  submitted  that  the plaintiff’s claim  for occupation rent is untenable as he says it was entirely her election  to  breach  an  agreement  regarding  her  occupation  of  the  home  on  the property, and it was also her decision to cease her contributions to the property.

[54]     The defendants also maintain that the plaintiff herself is liable for continuing indebtedness which is building up and owing to the defendants, it is said in the amount of $300.00 per month.  Presumably this is for outgoings and related claims

which Mr Hughes maintained would represent a total offset of an amount nearing the

$20,000.00 mark.

[55]     At this point I make clear that the issues before me on the present application do not involve decisions as to whether or not an amount for net occupation rental is due and payable by the defendants here and the proper amounts of any such occupation rental which may be due.  The question before me is simply whether the

$50,000.00 retention to cover later arguments concerning possible occupation rental and expenses is adequate or whether it should be increased.

[56]     On that aspect, what remains clear is that the $50,000.00 retention figure was set by His Honour Justice Miller on 4 October 2011.  That is some 18 months ago. Even allowing for small amounts by way of any increased occupation rent which might ultimately be determined, this $50,000.00 figure in my view should be increased now.  It is not likely as I see it that in October 2011 His Honour Justice Miller and indeed the parties envisaged that the property would remain unsold and this issue undetermined for what is now in excess of 18 months.

[57]     Notwithstanding this, I do note that the amount involved is simply a retention from ultimate sale proceeds to allow time for the occupation rental dispute to be argued and determined.

[58]     I am not satisfied however, on the evidence which has been advanced before me that an increase to this figure of $20,000.00 as sought by the plaintiff is entirely justified here.

[59]     An increase to the $50,000.00 figure of some 20% amounting to a further

$10,000.00 as I see it would amply cover these issues.

[60]     I  reach  this  conclusion  bearing  in  mind  also  that,  from  the  time  any agreement for the sale of the property to a third party is entered into, there is likely to be some weeks leading up to settlement itself in which a proper calculation of what is the potential occupation rent can be made.  To partly meet that aspect, I intend in this decision to continue the leave reservation in the original summary judgment

orders to enable any party to come back to the Court on 48 hours notice if for example a greater or lesser retention for potential occupation rent is thought to be necessary at that point.

[61]     I conclude therefore that the retention figure (to be held by Graham & Co)

provided  for  at  para  [3](b)(x)(G)  of  the  original  summary  judgment  orders  at

$50,000.00 is now increased to the sum of $60,000.00. An order to this effect is now made.

Conclusion

[62]     For all the reasons outlined earlier, the orders made at paras [36], [43] and [61] above are now confirmed and to this extent the plaintiff’s present application succeeds.

[63]     With those variations made, the original summary judgment orders (including the leave reservation at para [3](c)) are to remain in full force and effect.

Costs

[64]     As  to  costs  on  this  application,  given  that  the  plaintiff  has  been  partly successful and partly unsuccessful in achieving the orders sought in her application, it is my view that costs here should lie where they fall.  There is to be no order made as to costs.

Post Script

[65]     Two matters should be mentioned here by way of post script regarding the

hearing of the plaintiff’s present application.

[66]     The first matter relates to suggestions at the hearing on 18 April 2013 by Mr Hughes, counsel for the defendants that the real estate agent specifically appointed by consent in the original summary judgment order might be changed.   That nominated agent was Ms Jan Sparrow through Team HKH Limited being the Harcourts franchise at the Levin branch.

[67]     On  this  aspect,  I  note  that  there  was  no  formal  application  from  the defendants to amend this aspect of the consent orders made originally on 4 October

2011.   Some general submissions from Mr Hughes for the defendant complaining about what the defendant saw as inaction on the part of Ms Sparrow were made before me.  These however were strongly disputed on behalf of the plaintiff.   But again, as no formal application for a variation of this aspect of the original summary judgment orders was before the Court, no formal grounds were advanced to support the removal of Ms Sparrow as the appointed agent, nor did the plaintiff have any real opportunity before me to put her arguments in opposition.

[68]     That said, there is to be no change to the order made in the original summary judgment orders for Ms Sparrow of Harcourts, Levin to be appointed as agent for the sale of the property, a sale which I note counsel for both parties confirmed before me that both the plaintiff and the defendants are seeking.

[69]     The second matter by way of post script that needs to be mentioned here relates to a Memorandum dated 19 April 2013 filed by Mr Parmenter counsel for the plaintiff in this proceeding.

[70]     At the conclusion of the hearing of this matter on 18 April 2013, it was suggested to Mr Parmenter that, given the plaintiff’s complaint that the defendants allegedly have not been supporting the sale process for the property, the plaintiff might wish to consider specifying a (reduced) minimum payment she would receive from any sale process, on the basis that a reasonably early sale did ensue, with a larger balance going to the defendants to encourage their support as occupiers of the property for an enlivened sale process.

[71]     In this regard, Mr Parmenter in his 19 April 2013 Memorandum has indicated that he has taken instructions in this matter and the plaintiff has advised that her claims under this proceeding (including claims for occupation rent, interest and costs etc) would be satisfied were she to receive (net) $400,000.00 from a sale if this is to occur within the next 4 months.  Mr Parmenter contended that this might well result in a reasonable saving to and thereby profit the defendants, if indeed the property is sold promptly.

[72]     And, in his 19 April 2013 Memorandum Mr Parmenter sought “buy-in” from the defendants to this proposal.   This would if agreed then result he said in the matters the subject of the plaintiff’s present application simply being adjourned for a period of time to see whether a sale on this amended basis might be achieved.

[73]     As I understand the position however, there has been no response from the defendants to this proposal from Mr Parmenter.  It must be assumed therefore that the proposal is rejected, and hence my decision on the various aspects of the plaintiff’s application before the Court outlined above stands.

[74]     If this may not be the case and the defendants do wish to “buy in” to Mr Parmenter’s  proposal,  then  as  I  see  it  there  is  nothing  to  stop  the  parties  by agreement simply placing matters on hold in the meantime, to pursue a sale of the property on the basis Mr Parmenter suggests.

‘Associate Judge D.I. Gendall’