Doyle v Doyle HC Auckland CIV.1999-404-1102

[2007] NZHC 1682

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV.1999-404-1102

BETWEEN  ROLAND MICHAEL DOYLE Plaintiff

AND  BARBARA FLORENCE DOYLE First Defendant

AND  THE BODY CLINIC LIMITED Second Defendant

AND  CHRISTINE ANNE GALE Third Defendant

Hearing:         28 February 2007

Counsel:        Kevin F Gould for Plaintiff

No appearance for First Defendant David J Clark for Second Defendant No appearance for Third Defendant

Judgment:      28 February 2007

[ORAL] JUDGMENT OF WILLIAMS J

Solicitors for Plaintiff:

DMG Solicitors (Dennis M Graham) P O Box 99 188 Newmarket, Auckland

Email:  [email protected]

Solicitors for Second Defendant:

Wilson McKay, P O Box 28 347 Remuera, Auckland

Email:  [email protected]

Counsel:

Kevin F Gould, P O Box 1011 Shortland Street, Auckland (for plaintiff) Email:  [email protected]

Corrina Macdonald, Scheduler, High Court Auckland

Email:  Corrina[email protected]

Raman Nagra, Case Officer, High Court Auckland

Email:  Rama[email protected]

DOYLE V DOYLE AND ORS HC AK CIV.1999-404-1102  28 February 2007

[1]      This  is  a  long-standing  matter  concerning  the  ultimate  ownership  of  the property at 21 The Esplanade, Whitianga.

[2]      The property has been owned by the Doyle family for a long period.  Some of the history is set out by Morris J in his reserved judgment in this claim delivered as long ago as 1 June 2001.

[3]      The  Judge  on that occasion ordered that the  property be  sold  with  both Mr Doyle and his sister, Ms Daniels, who runs the Body Clinic, having the right to bid at the auction.  There were costs and other consequential orders.

[4]      Partly, perhaps, because of the somewhat unusual family history discussed by the Judge in the 2001 judgment, the title position concerning the property has some rather curious aspects to it.   Mr Doyle and the Body Clinic own the property as tenants in common in equal shares.  That notwithstanding, each of the owners has a certificate of title in their sole name.  Mr Doyle is the sole registered proprietor of CT.SA797/180 South Auckland Registry, and his sister, through her company, Body Clinic Limited, is the sole registered proprietor of CT.SA54B/205 South Auckland Registry.   Both titles show the interest as being the whole of the property namely

905m2 though each with a half share.

[5]      The position is that the matter came back before the Court on 17 October

2006 and on that occasion Lang  J  made  consequential orders in relation to the property being auctioned.  He directed who should be the real estate agents and how the parties should conduct themselves in the lead-up to the auction, and directed that “the costs of marketing and advertising the property are to be … met equally by the parties.  In the event that either party does not meet his or her share of the marketing and advertising expenses that  share shall be paid  from the net  proceeds of sale otherwise payable to the party in default.”   The Judge also made directions as to whom was to complete the conveyancing work in respect of the sale and noted that the firm selected,  Wilson  McKay,  would  accept  a  fee  of $2000  plus  GST  and disbursements.   The Judge also directed Mr Doyle to pay Body Clinic $2,500 for

costs plus GST and disbursements of $600 and again said that, should they not be paid by the time of settlement, those costs should be paid from Mr Doyle’s share of the proceeds.

[6]      He also authorised the Registrar to sign any documentation necessary to give effect to the sale on behalf of the other party should either party elect not to co- operate with the sale proceeds, and generally reserved leave to the parties.

[7]      The matter came back before the Judge on Friday last, 23 February 2007, the day before the scheduled auction.  That happened because it had come to notice that Mr Doyle had leased the property or part of it to his partner, Ms Gale, and she had registered a caveat against the title in Mr Doyle’s name in order to protect s claimed interest resulting from her contributing work to the refurbishment of the property.

[8]      The  lease  describes  the  property  demised  as  being  half  the  property  as detailed but the description of the premises also includes “an unidentified half share of the remaining land and sheds on the total property”.   Mr Gould, who has been involved  in  this  matter  for  a  lengthy  period,  says  that  notwithstanding  the implications which might be taken from that description of the demised premises, in fact the lease is and always has only been of Mr Doyle’s half share and the caveat therefore affects only CT.797/180.

[9]      On 23 February 2007 the Judge joined Ms Gale as third defendant in the proceeding but she has as yet taken no part in the claim.

[10]     The property went to auction on Saturday last.  It was bought by Mr Doyle at a price of $3.015m.

[11]     The matter has come back before the Court this morning because of concerns expressed on Ms Daniels’ behalf as to the way in which the contract was signed, recovery of the costs and the possibility of Mr Doyle not settling.

[12]     One can understand Ms Daniels’ concerns.   The contract for sale lists the property being sold as including both the titles earlier mentioned.  Mr Doyle refused

to pay the full 10% deposit for which the printed contract provided, and paid only a

5% deposit on the basis that he was only buying the other half share.   A draft settlement statement has been prepared also on a half share basis.

[13]     Mr Clark’s concerns are first, that Mr Doyle refused to sign the contract as vendor.   But Mr Gould suggests that in the situation as it has eventuated that is unnecessary.

[14]     One of the curiosities of this matter is, as earlier outlined, that each of the tenants-in-common has a title in his or its name showing them as the sole registered proprietor of the  half  interest.    If the  property had  been  sold  at  auction  to  an unrelated third party, then either two transfers or a combined transfer would have been required to be signed by both registered proprietors.

[15]     Technically,  even  as  matters  have  turned  out,  perhaps  both  tenants-in- common should convey the whole of the property to Mr Doyle.   But in practical terms, as Mr Gould suggested, if Mr Doyle prepares a transfer of Body Clinic’s title to Mr Doyle and it signs that and settles, then the ultimate effect will be as if the whole of the property had been conveyed to him.

[16]     On that basis, while it may have been preferable for Mr Doyle to sign the contract, it is unnecessary for him if he simply prepares a transfer and sends it to Body Clinic which signs it that and he settles.  In any event, if that is insufficient to bring about the required result, Body Clinic has the advantage of the order made by Lang J empowering the Registrar to sign the contract on Mr Doyle’s behalf.

[17]     The next matter raised by Mr Clark is a concern that, having regard to the difficult history of this claim, Mr Doyle may not pay the marketing and other costs awarded against him and may tender at settlement only the price payable for Body Clinic’s share of the property.

[18]     Mr  Gould  suggests  that  is  an  unlikely  result.     It  may  be  hoped  that Mr Gould’s optimism is justified.  But the appropriate course in that instance would be to reiterate the orders against Mr Doyle and require the payment of the whole of

those sums to Body Clinic’s solicitors no later than three days prior to settlement unless Mr Doyle, through his solicitors, gives an undertaking to the Court and Body Clinic to meet the whole of those costs at settlement.

[19]     Mr Clark’s next concern related to the lease to Ms Gale and the caveat.  His concern is that the contract provides in the usual way for vacant  possession on settlement and, of course, the lease, supported by the caveat, will prevent that.

[20]     Mr Gould’s response, however, is that the lease affects only Mr Doyle’s title and the caveat is only registered against that title.  Accordingly, if the conveyancing proceeds as earlier outlined, then the question of the lease and caveat are matters as between Mr Doyle and Ms Gale, and Body Clinic has no concern in that regard.  So Mr Gould is right if the suggested form of conveyancing eventuates, and accordingly there need be no order in that regard at this point.

[21]     The next issue relates to costs and case management of this file.

[22]     This is a complicated matter.   It should  be supervised between now and settlement and, if necessary, beyond settlement by one Judge and the schedulers are asked to allocate a Judge in that regard.   The Judge obviously most familiar with all the detail would be Lang J, alternatively Williams J could be assigned or any other Judge could pick up the matter.

[23]     The final issue is to record Mr Clark’s concerns that if Mr Doyle fails to settle in full as required then Body Clinic would wish to become the purchaser of the whole of the land or at least of the title currently in Mr Doyle’s name.   It is to be hoped that will not be required but if it is there are obvious contractual difficulties in the way of an order to that effect being made.   If necessary, those issues can be addressed by the Judge and counsel following settlement date passing without the full and correct funds being paid across.

………………………………..

28 February 2007  WILLIAMS J