Ells v Lapwood
[2019] NZHC 1835
•31 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-2673
[2019] NZHC 1835
UNDER Part 12 of the High Court Rules and sections 339-343 of the Property Law Act 2007 BETWEEN
PAUL REED ALEXANDER ELLS,
BRENDA MICHELLE ELLS and ROBERT
JOHN BURTON as Executors of the Estate of LESLIE REED LAPWOOD
Plaintiffs
AND
WAYNE REED LAPWOOD
First Defendant
JOHN CHARLES MATTHEW TEIRNEY
Second Defendant
ERIC VINCENT TEIRNEY
Third Defendant…/cont
Hearing: 24 July 2019 Appearances:
G Stringer for the Plaintiffs
No appearance by or on behalf of the Defendants
Judgment:
31 July 2019
JUDGMENT OF GORDON J
This judgment was delivered by me on 31 July 2019 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Inder Lynch, Auckland Copy To: The defendants
ELLS v LAPWOOD [2019] NZHC 1835 [31 July 2019]
LANCE PETER LAPWOOD
Fourth Defendant
PAUL REED ALEXANDER ELLS
Fifth Defendant
[1] On 25 May 2018, Associate Judge Bell made an order for the sale of the property concerned in this proceeding,1 the former home of Leslie Lapwood (Les).2 The plaintiffs, as executors of Les’ estate (the executors), now seek orders to effect the sale of the property and division of the proceeds under ss 339 and 343 of the Property Law Act 2007 (PLA).
[2] The hearing proceeded by way of formal proof. There was no appearance by, or on behalf of, any of the defendants.
Background
[3] The property is located at 402 Papakura-Clevedon Road (the property). It is a flat lifestyle block of about two hectares in area with a three-bedroom house and a two-bedroom cottage. Les and his late wife, Ivy, lived in the property together for many years until Ivy died in December 2006. They owned the property as tenants in common in equal shares. In her will, Ivy left her estate to her four sons in equal shares. They are John Charles Matthew Teirney and Eric Vincent Teirney3 (both sons of her first marriage), and Wayne Reed Lapwood and Lance Peter Lapwood (both sons of her marriage to Les). Each of the four sons accordingly owns a one-eighth share in the property.
[4] In 2011, John, Eric and Lance commenced proceedings in the High Court seeking orders that the property be sold. In March of 2013, John, Eric and Lance entered into a Deed of Settlement with Les. The settlement was explained by Associate Judge Bell as follows:4
[9] … At the time, Eric was in a difficult financial position. Les agreed to lend him $50,000. The settlement deed records that there would be no interest on the loan and it would be repayable in full when the property was sold. Eric, John and Lance agreed to give Les a life interest in their respective one-eighth shares in the property. The life interest would come to an end when Les vacated the property or he died — whichever came first. Once Les died or vacated the property, it was to be placed on the market for sale with one- half of the net sale proceeds going to Les or his estate, and the balance divided
1 Lapwood v Lapwood [2018] NZHC 1206 at [33].
2 I will refer to Mr Lapwood as Les and his two sons also by their Christian names given the common surname.
3 I will also refer to John and Eric by their Christian names given their common surname..
4 Lapwood v Lapwood, above n 1.
equally between Eric, John, Lance and Wayne, except that the loan to Eric of
$50,000 would be repaid from his share of the sale proceeds.
[5] On 27 November 2014, the fifth defendant, Paul Reed Alexander Ells (a nephew) entered into a Deed of Arrangement, incorporating a Deed of Transfer and Deed of Gift, with Les. The Deed provides in relevant part:
WHEREAS:
AThe Donor [Leslie Lapwood] is presently registered as the owner of a half (1/2) share (“the Donor’s share”) in the property at 402 Papakura- Clevedon Road, R D 2, Papakura 2582 contained in CT NA82B/86 (“the property”).
BThe Donor intends to transfer a one-quarter (1/4) share of the Donor’s half (1/2) share in the property to the Donee [Paul Ells] to the intent that the Donee be registered on the title as having a one-eighth (1/8th) share of the total property.
…
IT IS MUTUTALLY AGREED:
1.In consideration for the extensive care and concern and consideration given by the Donee to the Donor’s welfare over a long period of time particularly in light of domestic and personal circumstances which have befallen the Donor in recent times, the Donor considers it fair, reasonable and proper that the Donor transfers a one-quarter (1/4) interest of the Donor’s interest in the property to the Donee.
2.Both parties consider that a fair and reasonable value of the share being transferred to the Donee is ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000.00) in view of enquiries made by the Donor to ascertain the value of the property prior to signing this Agreement.
…
4. In consideration of the terms of this Deed and in consideration of the natural love and affection the Donor has for the Donee, the Donor shall on the settlement date, gift the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000.00) to the Donee.
[6] The provisions of the Deed between Les and Paul do not affect the ownership interests in the property, but they do affect the value of Les’ estate. Paul’s interest is supported by a caveat (9866806.1) dated 22 July 2016.
[7] There are two other caveats registered against the title of the property. Caveat 9424528.1, dated 10 June 2013, by Waimarie Management Services Ltd secures
unpaid costs owing by Eric, John and Lance to McKenzie Elvin Law of Tauranga assigned to service company Waimarie Management Services Ltd. McKenzie Elvin acted for Eric, John and Lance in connection with a dispute concerning Ivy’s estate on the basis that they agreed to mortgage their shares in the property to cover the cost of legal fees.
[8] The third caveat (9883122.1), dated 12 November 2014, is against Wayne’s share by the Legal Services Commissioner in relation to an amount owed by Wayne for Legal Aid.
[9] In November 2017, Les brought proceedings seeking an order for sale and associated orders. At that time the sole defendant was his son, Wayne. By then, Les was living in a rest home. In order to pay for his rest home care, he wished to realise his interest in the property. He applied for summary judgment. John and Eric agreed to a sale on the terms proposed by Les. Lance was aware of the proposal but took no steps. Wayne’s position was that he reluctantly agreed to a sale but did not agree with all the arrangements proposed by Les to sell the property.
[10] In his judgment of 25 May 2018, Associate Judge Bell considered there was a strong argument for the sale of the property, but the issue was how the sale was to be carried out.5
[11] There were also procedural matters that needed to be addressed. None of the caveators had been served. Associate Judge Bell dispensed with service on the Legal Services Commissioner and on Waimarie Management Services Ltd, noting that their interests were monetary and that they had no interest in opposing a sale. The Judge continued:
[17] The interest claimed by Paul Ells is quite different. He has an interest in the property and therefore he has an interest in saying how the property should be sold. He is entitled to be heard on any orders made for the sale of the property.
[18] John and Eric have signed a document recording that they have been served and they consent to the orders sought by Leslie. It is not clear however that they understand that they will be bound for any other orders which the
5 At [8].
court might make on an application under s 339. Lance has been served, but he has taken no steps at all. While he has agreed to a sale of the property in the settlement deed of March 2013, he still has standing to be heard on any application for sale. He is entitled to be heard on questions such as the terms of sale, and how the sale is to be arranged.
[19] Accordingly, in my view some adjustment to the parties is required. I direct that John, Eric and Lance are all to be named as defendants, as must Paul Ells as caveator.
[12]As to substantive matters, Associate Judge Bell stated:
[20] There is a general agreement that the Clevedon property is to be sold and that the proceeds of sale are to be distributed amongst the owners, according to the ownership shares but subject to two matters: any payment to Paul Ells for the interest he has claimed in the caveat, and Eric repaying Leslie the $50,000 lent to him in March 2013.
…
[24] … There is no reason why one owner should have the final say for setting an asking price. It is arguable that co-owners ought to be involved in the sales process to a greater extent than is provided for in the orders. Equally, there is an alternative which I put to the parties: that the court might instead appoint an independent agent (say a receiver) to sell the property. Overall there is no clear way forward on which I can make orders on a summary judgment basis for the sale of the property. Instead, those matters can only be resolved in a hearing before a Justice.
[13] The hearing directed by Associate Judge Bell for 23 October 2018 did not take place. That was because Les died on 6 June 2018. Les’ will of 10 November 2017 appointed the three named plaintiffs as executors of his estate. On 8 October 2018, the executors were granted probate of Les’ will and were administrators of his estate. The ownership structure of the property was thus:
·The executors: a half share
·Wayne: a one-eighth share
·John: a one-eighth share
·Eric: a one-eighth share
·Lance: a one-eighth share
[14] Robert Burton, a solicitor of many years’ standing who acted for Les prior to his death, has sworn an affidavit in support of the orders sought. Annexed to the affidavit is a copy of a letter of engagement from a real estate firm, Remax of Edge Clevedon (agent John Ryburn), dated 11 December 2018. The proposed listing
agreement is for a sole agency and a tender process. The estimated appraisal range is
$1,300,000 to $1,500,000 with a commission fee of approximately $44,275 and marketing costs of $1,474.30.
[15] Three of the defendants, John, Eric and Paul, have consented to the sale process proposed by the executors. In an affidavit sworn on 6 November 2017, Les deposed that Lance had signed a previous listing authority but Les said he was unable to locate that signed copy. Lance has not signed the current listing authority. Wayne lives at the property and has refused to vacate it or agree to the sale of the property by a licensed real estate agent.
[16] Mr Burton deposes that, on 17 December 2018, the executors sent the listing agreement to Wayne and asked that he agree to the selling process or whether he intended to provide details as to his proposed selling process. Wayne did not respond. Mr Burton says that Wayne has, at various times, said he wanted to sell the property by private sale through Trade Me. This proposal only emerged at court hearings. At other times, Wayne does not cooperate or respond to any requests to progress the sale.
[17] Wayne has occupied the property since August 2017 without the consent of Les and contrary to the settlement agreement with the second to fourth defendants (referred to in [4] above). Wayne has not made payment of, or accounted for, any rental in relation to his occupation since August 2017. Mr Burton also says that Wayne alleges the two-bedroom cottage on the property is tenanted and that the provisions of the Residential Tenancies Act 1982 apply. (This seems to be a reference to the evidence from Wayne at the time of the hearing before Associate Judge Bell). However, neither Les nor the executors were party to any such tenancy agreement.
[18] In relation to the caveats, Mr Burton says the executors will obtain the agreement of the caveators to remove the caveats upon settlement or alternatively obtain such orders as are necessary to ascertain the amounts owed to enable the caveats to be removed.
[19] The matter was set down for a substantive fixture. None of the defendants took any steps in terms of the timetable ordered by the Court. In his minute of 1 July 2019,
Woolford J recorded that Wayne had indicated his agreement to the sale but noted that he had taken no steps subsequent to the summary judgment proceeding. As well, no statement of defence or affidavits in opposition had been filed. Woolford J accordingly listed this matter for formal proof.
[20] On 23 July 2019, Wayne emailed a document dated 22 February 2019 to the Court and to Mr Stringer, who appeared for the executors. In the document, Wayne offered to buy the property. There was no agreement for sale and purchase attached and there is no reference to any finance application. Wayne also says in the document that he will be contesting his father’s will.
[21] Both of those matters were raised by Wayne when he appeared before Woolford J on 1 July 2019 when the matter was set down for formal proof. The minute of that conference records:
[5] As a postscript, I heard extensively from Mr Wayne Lapwood about various issues regarding the sale of the property and his father’s will. Mr Wayne Lapwood advised the Court that he wished to present an offer to purchase the property for $1.35 million, although he recognised he would have his work cut out to persuade a bank to support him. I indicated to Mr Wayne Lapwood that he was welcome to participate in the public sale process and there was nothing to stop him from presenting an offer to purchase the property. Furthermore, I advised him that he should obtain legal advice if he wished to contest his father’s will in any way.
[22] I respectfully agree with Woolford J’s observations. There is nothing in the letter that changes things.
Legal basis for orders sought
[23] The executors seek further orders to effect the sale of the property and division of the proceeds. Section 339 of the PLA provides:
339 Court may order division of property
(1)A court may make, in respect of property owned by co-owners, an order—
(a)for the sale of the property and the division of the proceeds among the co-owners; or
(b)for the division of the property in kind among the co-owners; or
(c)requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.
(2)An order under subsection (1) (and any related order under subsection (4)) may be made—
(a)despite anything to the contrary in the Land Transfer Act 2017; but
(b)only if it does not contravene section 340(1); and
(c)only on an application made and served in the manner required by or under section 341; and
(d)only after having regard to the matters specified in section 342.
(3)Before determining whether to make an order under this section, the court may order the property to be valued and may direct how the cost of the valuation is to be borne.
(4)A court making an order under subsection (1) may, in addition, make a further order specified in section 343.
(5)Unless the court orders otherwise, every co-owner of the property (whether a party to the proceeding or not) is bound by an order under subsection (1) (and by any related order under subsection (4)).
(6)An order under subsection (1)(b) (and any related order under subsection (4)) may be registered as an instrument under—
(a)the Land Transfer Act 2017; or
(b)the Deeds Registration Act 1908; or
(c)the Crown Minerals Act 1991.
[24] Section 343 of the PLA enables the Court to make further orders in addition to an order under s 339 ordering the property to be sold. Section 343 provides:
343 Further powers of court
A further order referred to in section 339(4) is an order that is made in addition to an order under section 339(1) and that does all or any of the following:
(a)requires the payment of compensation by 1 or more co-owners of the property to 1 or more other co-owners:
(b)fixes a reserve price on any sale of the property:
(c)directs how the expenses of any sale or division of the property are to be borne:
(d)directs how the proceeds of any sale of the property, and any interest on the purchase amount, are to be divided or applied:
(e)allows a co-owner, on a sale of the property, to make an offer for it, on any terms the court considers reasonable concerning—
(i)the non-payment of a deposit; or
(ii)the setting-off or accounting for all or part of the purchase price instead of paying it in cash:
(f)requires the payment by any person of a fair occupation rent for all or any part of the property:
(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 section 339(1).
[25] Section 342 of the PLA sets out the relevant considerations to which a court must have regard when considering whether to make a further order under s 339(4). I address each in turn.
Extent of applicant’s share in the property
[26]The executors are 50 per cent owners of the property.
Nature and location of the property
[27] As already mentioned, the property is a flat lifestyle block of about two hectares in area with a three-bedroom house and a two-bedroom cottage. Having regard to the nature and location of any property, the natural way of dividing interests in it was for it to be sold and the proceeds shared, as recognised by Associate Judge Bell.
[28] In terms of the further orders now sought, the estate agent, Mr Ryburn, has proposed a sale process by way of tender. He believes that would be the best method of selling the property given the present slow property market. He says a tender process gives a better opportunity to receive a sale with a better eventual outcome for the beneficiaries. Such a process allows conditional buyers who try to buy to include their conditions, therefore allowing a bigger buyer pool. The property is valued at
$1,300,000 to $1,500,000. The executors say that the property has significant value,
and to achieve that price it should be marketed and sold through Remax, a real estate firm.
The number of other co-owners and the extent of their shares
[29] Two of the owners (John and Eric), who together own 25 per cent of the property, consent to the proposed orders. Thus, 75 per cent of the owners consent to the orders.
[30]The sole opposition to the method of sale comes from Wayne who owns
12.5 per cent of the property. I agree with the submission made on behalf of the executors that it would be inappropriate for Wayne, as a 12.5 per cent owner, to dictate to the other owners as to how the sale process is to be conducted.
Hardship to the applicant vs hardship to any other person
[31] This factor requires the Court to consider the hardship that would be caused to the applicant by the refusal of the order in comparison with the hardship that would be caused to any other person by the making of the order. If the various orders are not made, there would be a hardship to the executors in the sense that the proposed orders are designed to achieve the best possible sale price. Mr Ryburn, in his affidavit, says the property should realise in the vicinity of $1,400,000. The best possible price would also, obviously, benefit the other owners, including Wayne.
Any other matters
[32]Under this heading, I discuss four particular orders that the executors seek:
(a)an order for any maintenance or repair costs necessary to ready the property for sale to be paid from Wayne’s share;
(b)an order authorising the executors to serve any notices required on any residential tenants in occupation of the two-bedroom cottage under the Residential Tenancies Act 1982;
(c)an order for vacant possession of the property by a date as directed by the Court; and
(d)an order that Wayne pay an occupation rent for the property at $831.25 per week from 31 August 2017 until such time as he vacates the property (this sum to be deducted from Wayne’s share of the sale proceeds).
[33] I deal with each of the proposed orders in turn. The first relates to repair costs being paid from Wayne’s share. Mr Burton annexes to his affidavit four colour photographs showing a large number of boxes. He says these were taken of the interior of the property in or about January 2019 by Lance. It is not clear whether the photographs are all of the same room or not. Mr Burton says that Lance has advised he does not wish to give evidence in the proceedings as he is intimidated by Wayne.
[34] I first observe that this is hearsay evidence. I also cannot be certain whether the boxes are all able to be attributed to Wayne or whether, for example, they were left there when Les vacated the property.
[35] There is further evidence in relation to the state of the property from the Remax agent, Mr Ryburn. He has sworn two affidavits, the first dated 9 May 2019. In his first affidavit, Mr Ryburn says he has been selling real estate in and around the Clevedon area since 1994. He says he regularly passes the property when he is driving in the area and he confirms from his recent observations that, “It is not looking good”. He says the pasture appears not to be grazed or mowed and is very long and weedy. He says the old greenhouses are in total disrepair. Because of the trees and hedges on the roadside, it was difficult to take any useful photographs.
[36] Mr Ryburn comments on the photographs annexed to Mr Burton’s affidavit. He says there is no way the property could be marketed in the condition shown in the photographs unless the vendors were prepared to sell at a give-away price. In his view, the whole property, including the house would need a very good clean out and tidy up. He says it does not need to be pristine, but it does need to be clean and tidy. He says prospective purchasers cannot see beyond the mess and work needed on a property
and from what he can see, the land also needs a mow and tidy up. He says he believes if the property was properly presented it would reach its optimal price.
[37] In relation to Mr Ryburn’s evidence, there is no evidence that the general state of the exterior of the property was in any way different when Les vacated the property. In all the circumstances, I am not prepared to make an order against Wayne that he bear the cost of tidying the property for the purposes of sale. I record that Mr Stringer realistically accepted that the evidence did not support such an order, given the lack of evidence as to the condition of the property (both interior and exterior) at the time Les moved out and Wayne moved in.
[38] Secondly, I turn to the proposed order authorising the executors to serve any notices required on any residential tenants in occupation of the property under the Residential Tenancies Act 1982. This proposed order relates to the two-bedroom cottage. It is not clear whether the two-bedroom cottage on the property is presently tenanted. There is no affidavit evidence on this issue. There was evidence from Wayne at the time of the hearing before Associate Judge Bell that there were tenants. In his memorandum of submissions filed for this hearing, Mr Stringer says that any rental has not been paid to any other owner (apart from Wayne). The submissions record that Wayne apparently uses this rent to meet the outgoings on the property. What is clear is that if there are tenants at the property they are not there with the authority, at least, of the executors. All the circumstances support this order as sought.
[39] Thirdly, the executors seek an order for vacant possession of the property by a date as directed by the Court. I refer to Mr Ryburn’s evidence as set out in [36] above, together with his preference stated in his first affidavit that the property be sold with vacant possession. Balancing the position of the executors against Wayne’s position, I am satisfied that an order for vacant possession should be made in relation to the three-bedroom house, in order to allow the sale process to occur. Wayne would have to move out in any event upon settlement of the sale.
[40] As to vacant possession of the cottage, the Court does not have sufficient information regarding the tenants (if any) to order vacant possession by a certain date. I am therefore not prepared to make an order for vacant possession in relation to any
tenants in the cottage unless and until further information is made available to the Court. The executors have leave to apply to the Court for an order for vacant possession of the cottage (if necessary) once the position in relation to the tenants has been clarified.
[41] Fourthly, there is the order sought that Wayne pay an occupation rent and that the amount claimed be deducted from Wayne’s share of the sale proceeds.
[42] In his second affidavit sworn 2 July 2019, Mr Ryburn deposes that a reasonable market rental would be $950 per week (made up of $550 for the main, three-bedroom house; $350 for the small, two-bedroom cottage; and $50 for the land). The executors accept that Wayne should not have to pay rent in respect of his 12.5 per cent share. Taking that into account, the order sought is for an occupation rent of $831.25 per week from 31 August 2017 until Wayne vacates the property, with that amount to be deducted from Wayne’s share of the proceeds. (In the event that the tenants are no longer in the cottage the amount of occupation rent would need to be adjusted having regard to the end date of that tenancy).
[43] Finally, Mr Ryburn deposes that in terms of setting the minimum acceptable price for the tender, it is usual for him to set the reserve after a period of marketing, so the likely sale price can be ascertained. Mr Ryburn says he is comfortable working with a registered valuer as far as setting the price and he will be guided by a registered valuer in the process. Mr Ryburn says he believes that this will ensure there is accountability and fairness in respect of the sale of the property. He agrees with the appointment of a registered valuer.
Orders
[44]I make the following orders:
(a)John Ryburn and Richard Sumner of Remax Edge are appointed as listing agents for the sale of the property in accordance with the Listing Authority (Exhibit “C” to the affidavit of John Burton sworn 20 May 2019).
(b)The listing agents will, on the request of any party, provide recommendations as to how the property will be presented at its best to achieve sale.
(c)The first defendant and any other occupier of the three-bedroom house on the property must vacate the property no later than six weeks from the date of this order.
(d)The sale transaction and conveyancing aspects are to be undertaken by John Burton, solicitor of Papakura.
(e)The property will be sold by tender.
(f)Mr Peter Bennett of Property Valuations Ltd (PVL) is to be instructed forthwith by or on behalf of the plaintiffs and the defendants jointly to undertake a further valuation for the purpose of assisting the plaintiffs and the defendants with all aspects of the proposed sale, including setting realistic reserve and selling prices. PVL’s instructions are to be ongoing through the sale process and the plaintiffs and the defendants shall be guided by Mr Bennett’s assessments of the value at each stage of the sale process if required by any party. If any party requires an assessment over and above those valuations set out in the sale process provided in these orders, then that assessment shall be at the requesting party’s cost unless otherwise agreed.
(g)The costs of valuations as set out in the sale process provided for in these orders shall be shared between the plaintiffs and the first defendant equally.
(h)The tender reserve price will be set by PVL, after discussion with the listing agents.
(i)The plaintiffs are authorised to serve any notices required on any residential tenants in occupation of the two-bedroom cottage on the property pursuant to the Residential Tenancies Act 1982.
(j)The first defendant is to pay an occupation rent for the property assessed at $831.25 per week from 31 August 2017 until such time as he vacates the property. This sum is to be deducted from the first defendant’s share of the sale proceeds. (In the event that the tenants are no longer in the cottage, the amount of occupation rent would need to be adjusted having regard to the end date of that tenancy — in terms of
[42] of this judgment).
(k)Payment is to be made to the caveators as necessary to enable the caveats to be removed. For the avoidance of doubt, such sums owing under the caveats are to be deducted from the share of the party liable for the underlying interests that support the caveats.
(l)The plaintiffs are authorised to obtain details of the sums owed to the Legal Services Commissioner by the first defendant to enable the debt to be repaid and the caveat 9883122.1 removed.
(m)The sale proceeds are to be applied as follows:
(i)First, in payment of all associated costs of sale including, but not limited to real estate agent’s commission, valuation costs, marketing, rates (land/water), removal and cleaning costs;
(ii)In payment of legal costs and disbursements associated with the sale of the property;
(iii)In payment of any outstanding rates (land and/or water);
(iv)Amounts owing in relation to the caveats (such sums as owing under the caveats to be deducted from the share of the party liable for the underlying interests that support the caveats);
(v)Other outgoings (excluding maintenance and repairs) associated with the property to be deducted from the share of the party responsible for those outgoings;
(vi)Occupation rental deducted from the first defendant’s share of the sale proceeds as ordered in (j) above to be applied to the plaintiff and the second to fourth defendants in accordance with their percentage share of the property;
(vii)Any legal costs awarded against any party in these proceedings are to be deducted from the liable party’s share of the sale proceeds;
(viii)For the avoidance of doubt, all commission, marketing, valuation, rates and legal costs on the sale are to be met from the gross proceeds of sale;
(ix)The net proceeds of the sale proceeds to be divided as follows: Les’ estate as to a half share (less $150,000 to Paul Ells); John Charles Matthew Teirney as to a one-eighth share;
Eric Vincent Teirney as to a one-eighth share (less
$50,000 to be paid to Les’ estate);
Wayne Reed Lapwood as to a one-eighth share; Lance Peter Lapwood as to a one-eighth share;
(x)Any deductions from the net shares will be made prior to distribution.
(n)Any chattels or other property left at the property after the date for vacant possession will be disposed of at the discretion of the plaintiffs, reasonably exercised.
(o)The Registrar of the High Court will sign all documents necessary to effect sale of the property in the event of any defendant’s failure or refusal to sign such documents.
(p)Leave on two days’ notice is reserved for the plaintiffs to seek further orders and directions as required to effect the sale and division of proceeds of sale, including but not limited to orders in relation to the vacation of the property by any tenants of the two-bedroom cottage.
(q)If the sale process does not produce a satisfactory result within three months from when vacant possession is achieved, the plaintiffs have leave to seek further directions from the Court.
Costs
[45] The executors are entitled to costs as against Wayne. It is his lack of cooperation that has required this proceeding. Costs are fixed on a 2B basis from the commencement of the proceeding together with disbursements (to be approved by the Registrar). The costs and disbursements are to come out of Wayne’s one-eighth share of the sale proceeds.
Gordon J
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