Greig v Jeffery-Jones
[2018] NZHC 833
•27 April 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2015-409-000229 [2018] NZHC 833
BETWEEN BRUCE JAMES GREIG
Entitled Party
AND
REBECCA MARGERY JEFFERY-JONES
Liable Party
Appearances: P A Cowey for Entitled Party Judgment:
27 April 2018
(Determined on the papers)
JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to application for extension of charging order
Introduction – the charging order
[1] The applicant, as an entitled party, had a charging order issued against land owned by the respondent (the liable party). The charging order was issued on 27 April 2016 pursuant to r 17.42 High Court Rules.
[2] By reason of r 17.52(1) High Court Rules, the charging order will be treated as discharged today (being two years from the date of the charging order) unless it is extended.
Application for extension of the charging order
[3] The applicant seeks an order extending the effect of the charging order for two years under r 17.52(2) High Court Rules.
GREIG v JEFFERY-JONES [2018] NZHC 833 [27 April 2018]
[4] Counsel filed the application without notice, certifying that to proceed on notice would cause undue delay or prejudice to the applicant. At the same time, counsel advised the Court (on 23 April 2018) that a copy of the application has been informally provided to the solicitor who has represented the liable party in the proceedings which gave rise to the judgment relied upon by the applicant.
The correct approach on an application for extension
[5]I apply the following principles:
(a)Any order extending the charging order must be made within the two- year period during which the order remains in effect.1
(b)The Court is required to address the justice of any extension for any necessary period.2
(c)To give the respondent the opportunity to be heard in relation to the justice of extension, the application for extension should be on notice unless the application can be justified as a without notice application in terms of r 7.23(2) High Court Rules.3
(d)The applicant should provide the Court with sufficient information as to the “necessary period” of extension.4
(e)In the event that an application is made without notice because it is filed late before the date of automatic discharge of the charging order, the Court may on satisfactory evidence make an order of extension but subject to the right of the respondent to apply for relief under rr 17.44 or 7.49 High Court Rules or otherwise.
1 Nicholl v Official Assignee [1996] NZLR 779 (SC) at 780.
2 High Court Rules, r 17.5(2); Bank of New Zealand v Taleta [2015] NZHC 2821 at [10].
3 Bank of New Zealand v Taleta, above n 2, at [12].
4 Bank of New Zealand v Taleta, above n 2, at [15].
The supporting evidence
[6] The applicant did not initially file evidence in support of his application. Instead, it appeared that counsel intended to have the Court rely upon statements of fact contained in counsels’ accompanying memorandum. The Court urgently issued a Minute requiring proper evidence if the application was to be considered on its merits.
[7] Evidence has now been filed in the form of an affidavit of a solicitor-clerk employed by the applicant’s solicitors. The evidence is that:
(a)The entitled party withheld taking further enforcement steps in respect of his charging order as the liable party had the following proceedings in train:
(i)An application for leave to adduce further evidence on appeal (dated 15 February 2016);
(ii)An application for leave to extend time to bring an appeal of a 2011 decision of the Family Court (dated 15 February 2016);
(iii)An appeal of the 2015 decision of the Family Court (dated 4 December 2015); and
(iv)An application for leave to appeal out of time in the Court of Appeal regarding her failed application for judicial review (dated 5 November 2015).
(b)The disposal dates of these proceedings were 2 September 2016, 2 September 2016, 20 May 2017, and 14 July 2016 respectively. The liable party was ultimately unsuccessful in all of these applications (with the exception of the grant of leave to adduce one of three classes of evidence on appeal).
(c)Following the disposal of those proceedings, the entitled party could proceed with fixing costs in the Family Court regarding the 14 day
Family Court hearing. That application was lodged on 18 October 2017 and a decision is still awaited.
(d)It was reasonable to await the outcome of the above proceedings before applying for a sale order because:
(i)Had the Court awarded costs against the entitled party, such costs would have been able to be offset against the sums on which the charging order was based; and
(ii)The parties are still awaiting the decision of the Family Court regarding the costs of the liable party’s unsuccessful appeal of the 14 day Family Court hearing. The entitled party wishes to have the full amount owing by the liable party determined before taking enforcement action.
[8] The evidence is that the respondent has not made any payments to satisfy the judgment debt, despite written demand to do so.
Discussion
[9] The application for extension is made, and the extension order can be made, within time (time for extension expiring today).
[10] I am satisfied that it is just to extend the effect of the charging order having regard to the appropriateness of the applicant’s awaiting the outcome of the various proceedings and steps taken by the liable party since the charging order was issued.
[11] I am further satisfied that a two-year extension is reasonably necessary, having regard to appeal rights which the liable party will have in relation to the Family Court costs order as and when it is made.
[12] Finally, I am satisfied that undue delay and prejudice would have been caused to the applicant if required to proceed on notice as it is unlikely that the extension could have been dealt with within the required period.
Orders
[13]I order:
(a)The effect of the charging order issued on 27 April 2016 is extended for a period of two years.
(b)Leave is reserved to the entitled party to apply for relief under rr 17.44 or 7.49 High Court Rules or otherwise.
(c)I fix the costs of the application for extension on a 2B5 basis and they, together with disbursements to be fixed by the Registrar, are to be costs in the cause.
Associate Judge Osborne
Solicitors:
Parry Field Lawyers, Christchurch
5 High Court Rules, Category 2 under r 14.3(1) and band B under r 14.5(2).