Copland v Goodwin HC Dunedin CIV 2008-412-662

[2010] NZHC 2147

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2008-412-000662

UNDER  the Property Law Act 2007

IN THE MATTER OF     an application for sale of jointly owned land and division of proceeds

BETWEEN  BRIAN STEWART COPLAND Plaintiff

ANDWAYNE ERNEST GOODWIN First Defendant

ANDELIZABETH GOODWIN Second Defendant

Hearing:         23 November 2010

Appearances: JCD Guest for Plaintiff

L A Andersen for Defendant

Judgment:      23 November 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors/Counsel:

Downie Stewart, PO Box 1345, Dunedin

Scholefield Cockroft Lloyd, PO Box 166, Dunedin

L A Andersen, PO Box 5117, Dunedin

B S COPLAND V W E GOODWIN AND ANOR HC DUN CIV-2008-412-000662 23 November 2010

[1]      This proceeding was an application under the 2007 Property Law Act for a sale of jointly owned land.   The proceedings originated because the plaintiff is a judgment creditor of the first defendant.   He has been largely unsuccessful in enforcing a substantial money judgment obtained in 2006.  Mr Copland had to file charging orders against land in the name of Mr Goodwin. That included properties jointly owned by Mr and Mrs Goodwin at Mosgiel and at Te Anau.

[2]      The Westpac Bank had mortgages over both the properties in Mosgiel and Te Anau.  Westpac Bank used its power of sale under its mortgage to sell the Mosgiel property.  From the proceeds of sale there was a surplus available which was applied in partial reduction of the judgment sum payable to Mr Copland.  In other respects, however, Mr Copland has been unsuccessful in enforcing the judgment.

[3]      The other property is at 7 Tom Plato Drive, Te Anau, in the names of both Mr and Mrs Goodwin.  Judgment was obtained for the sale of the properties so that Mr Copland could receive half the proceeds of sale, being Mr Goodwin’s half-share.

[4]      The judgment creditor has experienced delays by Mr and Mrs Goodwin and lack of co-operation.  Mr Andersen, who has appeared for the Goodwins, says that they were largely in ignorance and points to the orders for substituted service which resulted in the Goodwins receiving only partial and limited disclosure of steps that had been taken against them.  Mr Andersen says that Mrs Goodwin only found out when a bankruptcy notice for Court costs was served on her.  Nevertheless, I am left with the suspicion that the Goodwins must have had a pretty good idea what was going on.  There has simply been stalling and delay with the sale of the property.

[5]      In the end, Mr Copland’s lawyers applied to this Court in December 2009 for orders for directions as to the sale of the property.  The directions sought were these:

a)       That the property situated at 212 Bush Road, Mosgiel, and 7 Tom Plato  Drive,  Te  Anau,  which  is  the  subject  of  the  substantive judgment be sold through the services of a licensed real estate agent;

b)That  the  defendants  vacate  the  properties  and  hand  the  keys  and security alarm to the Registrar of the Court or his authorised agent within 14 days of the directions being made;

c)       That the Registrar may authorise any person, including the plaintiff, to enter the properties for the purposes of tidying and preparing them;

d)That the reasonable costs for tidying and preparing the properties may be approved by the Registrar and reimbursed out of the proceeds of sale.

[6]      A notice of opposition to those orders was filed.   However, instead of the matter   going   to   a   hearing,   there   was   a   judicial   settlement   conference   on

28 September 2010.  The outcome of that settlement conference is recorded in the minute of Associate Judge Osborne on that date.  The outcomes are recorded in his minute:

[4]      The agreed outcomes at the conference were as follows:

a.The Registrar is to contact Perpetual’s Te Anau based agent with a view to an appraisal of 7 Tom Plato Drive, Te Anau. That appraisal will be for the Registrar.

b.The Registrar is at the same time for convenience to contact Mr  Copland’s  nominated  agent  at  L  J  Hooker  for  the purposes of seeing the property and making an appraisal at the same time as the Perpetual agent – the L J Hooker appraisal is to be for Mr Guest and Mr Copland and is to be confidential and privileged to them.

c.Mr and Mrs Goodwin are to provide to Mr Lloyd all keys and any other access information required for 7 Tom Plato Drive (including any security information) and is to co- ordinate with the Registrar the timing of Mr Lloyd’s trip to Te Anau for the purpose of giving access to the two agents.

d.The intention of the parties is that the inspection by each agent   and   the   completion   of   their   appraisal   reports (Perpetual to the Registrar and L J Hooker to Mr Guest) are to be completed by Friday 8 October 2010.

e.The Registrar promptly upon receipt of the Perpetual report is to provide a copy to counsel on the basis that it is confidential to counsel and the parties.

f.Mr Lloyd or Mr Andersen is to frankly discuss the legal position affecting the property with Mr M Tavendale, the solicitor nominated by the purchasers, Mr and Mrs Paton.

g.        Immediately upon receipt of the Perpetual appraisal, counsel are to confer and in any event are to file preferably a joint memorandum no later than 19 October 2010 detailing progress and any directions that are sought.

[7]      The  upshot  is  that  Mr  Copland’s  lawyer  withdrew  the  application  for directions and matters are proceeding. I have been told today that progress has been made with marketing.

[8]      The issue today is that Mr Copland now seeks an order for costs on the application for directions.  The application for costs was opposed by Mr Andersen for the Goodwins.   His first point was that the Court had no power to make the second order sought, that is, that the defendants vacate the properties and hand the keys and security alarm to the Registrar.  He also argued that orders (a), (c) and (d) were within the power of the Registrar anyway.

[9]      If this matter were being argued as a defended application, I might have to give a decision on the point.  Certainly I can understand the plaintiff applying to the Court for directions.  It seems to me that to allow the sale to proceed properly it was necessary that the present occupants who, to all intents and purposes, were still being unco-operative, should vacate the property, simply to improve the prospects of sale. At the moment, I do not see any basis for the claim that the Court does not have the power under r 11.22, particularly in terms of r 11.22(3) and (4), to require unco- operative judgment debtors to vacate the premises to expedite a sale at a favourable price.

[10]     But what causes me concern in this case is that the matter has gone to a settlement conference and matters have been  resolved in that  conference.    It is necessary to look at what was actually sought in the application and the outcomes.

[11]     The application did not expressly seek an order for costs.   The conference proceeded instead by addressing the matters that were sought in the application and addressed no other matters.  To all intents and purposes, Mr and Mrs Goodwin have

agreed to the matters set out in Associate Judge Osborne’s minute on the basis that what was in issue between the parties had been resolved.  Mr Guest says that costs were still a live issue. There is nothing in the application that would indicate to the Goodwins  that  costs  were  a  live  issue    There  is  nothing  in  Associate  Judge Osborne’s minute that would suggest that costs were a live issue in the conference and that they have been resolved one way or the other in the conference.

[12]     Given that the parties have addressed what was an issue in the application, it would be inequitable for the plaintiff now to turn around following that conference and then say “Oh by the way, costs are now in issue, even though I did not signal them in the application and even though they do not appear to have been expressly addressed in the conference itself.”   It is necessary that when parties do resolve matters that they resolve matters involving costs as well.  If costs are to be reserved in a context such as this, it is important that the plaintiff, intending to pursue the question of costs, should signal that so that the defendants are in no doubt about the matter.  For all I know, if the plaintiff had said in the settlement conference that he still wished to keep alive his pursuit of costs, although it had not been included in the application, it would still have been recorded in the settlement conference as a live issue.  It may be that the outcome of the conference would have been different if the plaintiff had taken that stance.   It is now not an appropriate case for the Court to order costs against the defendants since costs were not properly kept alive as an issue either in the application or in the settlement conference minute.

[13]     On that basis, I do not allow an order for costs.   I say this generally, not because I have any particular sympathy for the Goodwins - if anything they seem to be  quite  unattractive  people  and  Mr  Goodwin  appears  to  be  stalling  on  his obligations under this judgment.  Nevertheless, it is necessary to bear in mind that settlement conferences involve some give and take.  It would go against the general benefits of  a settlement conference if  one party afterwards were to  try and raise an

issue that had not been alive at the settlement conference.  People would not trust the utility of  settlement  conferences.  It  is  for  that  general  reason  that  I  reject  the

application for costs in this case.

R M Bell

Associate Judge