Feck v Parohinog

[2013] NZHC 3294

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-813 [2013] NZHC 3294

BETWEEN  DIWA LAPURA FECK Plaintiff

ANDELSA LAPURA PAROHINOG Defendant

Hearing:                   9 December 2013

Counsel:

Appearance:

SA McKenna for plaintiff

EL Parohinog, defendant in person

Judgment:                10 December 2013

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on app for summary judgment]

Solicitors:           Frankton Law, Hamilton (J Galt)

And To:             E Parohinog, Auckland

FECK v PAROHINOG [2013] NZHC 3294 [10 December 2013]

[1]      The plaintiff applies for summary judgment.

[2]      The plaintiff and defendant are registered as tenants in common in respect of a property at 9 Edwin Street, St Andrews, Hamilton and identified in certificate of title SA12A.

[3]      The defendant currently represents herself.

[4]      The plaintiff’s particular concern is as to her capacity to meet mortgage commitments to ANZ National Bank Ltd, which holds a first mortgage over the subject property.

[5]      The parties initially were in disagreement over whether or not a sale should occur at this time.   They have now agreed.   The parties invite the court to make orders in reliance on s 339 of the Property Law Act 2007.  I am satisfied that a sale at this stage, followed by a hearing to determine the precise entitlement of the parties at a later time is justified.

[6]      Accordingly, I order by consent as follows:

(a)       The  house  at  9 Edwin  Street,  St Andrews,  Hamilton  identified  in certificate of title SA12A shall be sold.   The reserve price shall be

$442,000.  The sale shall be conducted by an independent real estate agent, namely Sally Mutton of Harcourts Real Estate;

(b)Daniel Harrison of the firm of Gurnell Harrison Law Ltd will act for both parties in respect of any sale;

(c)       The proceeds of sale shall be used to:

(i)       Repay the mortgage with the ANZ National Bank Ltd; and

(ii)      The costs associated with the sale;

(d)The remaining proceeds of sale shall be placed in an independent solicitor’s trust account of Gurnell Harrison Law Ltd, solicitors of Hamilton.  The remaining proceeds of sale may only be released by order of the court or agreement of the parties;

(e)       Leave is reserved to the parties to apply on 24 hours’ notice for any

further order relating to the sale; (f)     The plaintiff:

(i)will provide a summary of all rental/board payments received from 2007 until the present time to the defendant.  These payment  details  will  be  supplied  no  later  than  30 January

2014;

(ii)will provide written details of any complaints made by her to the ANZ National Bank Ltd about the defendant at any time by

30 January 2014;

(iii)will advise who the ANZ National Bank Ltd employee was who granted the payment holiday in respect of the mortgage by 30 January 2014;

(iv)     shall  file  and  serve  an  amended  statement  of  claim  by

31 January  2014  which  will  fully  particularise  all  matters pertaining to the issue of entitlement to share in the proceeds of sale;

(v)      shall give, in the event that a sale is settled before 30 January

2014, the rental/board payment details, the complaint details and the advice of the person who granted the payment holiday in respect of the mortgage on the day of settlement to the defendant;

(g)The  defendant  shall  file  and  serve  a  statement  of  defence  to  the amended statement of claim and, if appropriate, any counterclaim by

21 February 2014;

[7]      Costs in relation to the summary judgment application are reserved.

[8]      A case management conference in person shall be held at the Hamilton High

Court on 5 March 2014 at 12 noon. The following matters will be addressed: (a)           Classification for the proceeding;

(b)      The costs category for the proceeding;

(c)       A summary of the issues requiring resolution at trial;

(d)Discovery and, in particular, whether there has been agreement on the appropriate discovery orders to be made;

(e)      The pleadings and whether any further amendments in relation to them are required;

(f)       Whether any particular interlocutory order or direction is required; (g)          The forum to discuss settlement;

(h)The fixing of a trial date and the making of any trial directions that are required.   The parties, or their counsel as appropriate, should have available the number of witnesses to be called and the general scope of the evidence to be covered by them so that an accurate assessment can be made of trial duration.

Memoranda shall be filed on a sequential basis so that the defendant has the opportunity of commenting upon the plaintiff ’s summary of the trial issues.   To achieve this the plaintiff’s memorandum dealing with the above matters shall be filed and served on or before 26 February 2014 and the defendants’ memorandum dealing

with  the above matters and, in particular, commenting upon, conceding or adding to

the list of issues shall be filed and served by 3 March 2014.

JA Faire

Associate Judge

.