Farr v Miller

[2017] NZHC 3150

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2013-485-8999 [2017] NZHC 3150

UNDER	the Insolvency Act 2006
BETWEEN	MICHAEL EDWARD FARR AS ASSIGNEE OF INSPECT IT 1ST LIMITED (IN LIQUIDATION) Plaintiff
AND	ROSS MILLER Defendant

On thePapers:
Counsel:	B M K Pamatatau for Plaintiff
Judgment:	15 December 2017

JUDGMENT OF CLARK J

[1]      Michael Farr, as assignee of Inspect It 1st Ltd (in liq), applies without notice for leave pursuant to r 17.9(2)(c) of the High Court Rules to issue an enforcement process, namely a charging order. Mr Farr also requests leave to subsequently request the registrar to issue a sale order.

Background

[2]      Inspect It 1st obtained a judgment in the Disputes Tribunal against Ross Miller on 2 July 2013 (judgment debt).  Inspect It 1st Ltd was placed into liquidation on the

same day.

FARR v ROSS MILLER [2017] NZHC 3150 [15 December 2017]

[3]      On 23 January 2014 Inspect It 1st applied to adjudicate Mr Miller bankrupt on the  basis  of  the  unpaid  judgment  debt  owed  by  Mr Miller.    On  7 July  2014

Inspect It 1st’s application was withdrawn with leave.  The Court ordered costs and disbursements of $3,876.00 to be paid by Mr Miller (order for costs).

[4]      On  2 March  2015,  by  a  deed  of  assignment,  Inspect It 1st assigned  to Michael Farr the Disputes Tribunal judgment debt and order for costs.  Notice of the assignment was given to Mr Miller on 20 July 2015.

[5]      On 11 May 2016 in the Porirua District Court an order was made permitting

Mr Farr to issue an enforcement process against Mr Miller and to take proceedings as Inspect It 1st would have been entitled to take against Mr Miller for the unsatisfied judgment debt and costs. The order was served on Mr Miller on 20 July 2016.

[6]      On 31 May 2017 Thomas J granted leave to Mr Farr to issue a charging order and subsequently to request the registrar to issue a sale order in relation to the judgment debt.

[7]      Mr Farr has sworn an affidavit deposing to the changes that have taken place in the parties entitled to enforce the judgment.  Mr Farr has also verified his belief

Mr Miller is beneficially entitled to an estate in fee simple (identifier WN21A/835, Lot 111 DP 48966) (the property).  He annexed a certificate of title of the property which recorded a transfer of the property to Mr Miller and a Susan Miller on 26 April

1985.  Two charging orders are registered on the certificate of title.  The first is dated

27 September 2013 between Mr Miller and Inspect It 1st. The second is:

10820828.1 CHARGING ORDER DATED 1 JUNE 2017 BETWEEN ROSS MILLER AND MICHAEL EDWARD FARR – 15.6.2017 at 7:00 am

[8]      Mr Farr now wishes to place a charging order over the property for the outstanding amount of the order for costs.

Legislative provisions

[9]       By operation of r 17.9(2)(c) of the High Court Rules leave is required to issue an enforcement process if any change has taken place (whether by death or otherwise)

in the parties entitled or liable to enforcement under a judgment.  An “enforcement process” includes a “charging order” and a “sale order”.1

[10]     The grant of leave to issue an execution process is a matter of discretion to be exercised on the merits of the case.2

[11]     A Judge may determine an application can properly be dealt with without notice where the application relates to a routine matter.3

Assessment

[12]     I am satisfied Mr Farr is entitled to the orders he seeks.  He is the assignee of a sealed order for costs.  Mr Miller is indebted to Mr Farr pursuant to the order for costs.  The certificate of title confirms Mr Miller has an interest in the title sought to be charged.  I am also satisfied leave should be granted on a without notice basis to issue a charging order and subsequently to request the registrar to issue a sale order.

[13]     Mr Farr is entitled to costs and disbursements on this application.

Order

[14]     The draft order provides $5,605.91 as the amount to be charged. The order for costs was sealed on 24 June 2014 in the sum of $3,876.00. Interest of $660.91 applies to 21 November 2017.  I am satisfied $5,605.91 is the proper amount reflecting as it

does the costs judgment sum, interest and costs of this application.

Karen Clark J

Solicitors:

Kevin McDonald and Associates, Auckland for Plaintiff

1      High Court Rules, rr 17.1 and 17.3.

2      R Chesney Ltd v New Zealand Dry Cleaners and Dyers Ltd [1958] NZLR 598 at 601.

3      High Court Rules, r 7.46(3).