Gallo v Sultan

[2021] NZHC 2286

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000280

[2021] NZHC 2286

BETWEEN

MICHAEL ROSS GALLO

Applicant

AND

NADIA SULTAN

Respondent

Hearing:	31 August 2021
Appearances:	A N Riches for Applicant O T Alpers for Respondent
Judgment:	1 September 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 1 September 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GALLO v SULTAN [2021] NZHC 2286 [1 September 2021]

[1]    In this proceeding the applicant, Mr Gallo, applies for an order that his Notice of Claim of Interest pursuant to s 42(2) of the Property (Relationships) Act 1976, lodged as Instrument 11697900.1 against the parcel of land in Record of Title Identifier 61315 (Canterbury Land Registry) not lapse.

[2]    The property is registered in the name of the respondent, Mr Gallo’s wife Nadia Sultan. Mr Gallo and Ms Sultan separated in around January 2020 and the Notice of Claim was lodged on 2 March 2020.

[3]    Mr Gallo commenced this proceeding after receiving a notice dated 10 June 2021 from the Registrar-General of Land that Ms Sultan had applied to lapse the Notice of Claim.

[4]    On 24 June 2021, I made an interim order that the Notice of Interest shall not lapse pending further order of the Court. On 22 July 2021 the matter was called in the Associate Judges List where I made timetabling directions to have the application heard on a defended basis. Since then the parties have filed affidavits and submissions and the matter was ready to proceed to a hearing on 31 August 2021.

[5]    However, there was an indication appearing in  the  submissions  filed  for Ms Sultan that she would withdraw her opposition to the application and I directed counsel to confer to see whether agreement could be reached. On 27 August 2021, counsel for Mr Gallo, Mr Riches, advised the Registrar in an email that agreement had been reached save in respect of costs and that the hearing on 31 August 2021 was required to determine that issue only.

[6]    In the circumstances I commenced the hearing by way of telephone conference. Mr Alpers for Ms Sultan has confirmed that an order can be made that Mr Gallo’s Notice of Claim shall not lapse. Counsel were also agreed that there should be an order that Mr Gallo commence proceedings within 42 days to resolve relationship property issues if they could not be agreed.

[7]In relation to costs, Mr Gallo’s position is that he is entitled to costs on a scale

2B basis with a 25% uplift for steps taken following 23 July 2021 when his counsel

sent a proposal for resolution of this matter to Ms Sultan’s counsel on an open basis. As something of a surprise, Mr Alpers advised that as late as 30 August 2021 Ms Sultan made an application for legal aid. I understand that on this basis it is suggested no order for costs should be made.

[8]    In the circumstances I cannot determine the question of costs without giving Mr Riches time to consider the matter and for counsel to file further submissions. I provide for this in the orders below.

Result

[9]There shall be an order in terms of paragraph 1.1 of the applicant’s originating

application of 22 June 2021.

[10]   The order in [9] above is conditional upon the applicant commencing proceedings for resolution of relationship property issues within 42 days in the event that those issues are not resolved by agreement.

[11]I reserve leave to the respondent to apply for an order that the applicant’s

Notice of Claim lapse should he fail to comply with [10] above.

[12]   Costs are reserved pending receipt of further memoranda from counsel as to the implications of Ms Sultan’s application for legal aid. Those memoranda are to be filed today following which I will issue a determination on costs.

O G Paulsen Associate Judge

Solicitors:

Saunders & Co, Christchurch
Alpers & Co – Northwest Law Office, Christchurch