Guthrie v Brown

[2021] NZHC 3378

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-61

[2021] NZHC 3378

UNDER

the Senior Courts Act 2016 and the Property Law Act 2007

BETWEEN

JENNIFER ANNE GUTHRIE and CHRISTOPHER WILLIAM RUSHTON as

executors and trustees of the ESTATE OF BEVERLEY ANN RUSHTON

Plaintiffs

AND

JONATHAN ANDREW BROWN

Defendant

Hearing:	9 December 2021
Appearances:	R M Reeve for Plaintiffs G A Paine for Defendant
Judgment:	9 December 2021

INTERIM JUDGMENT OF ASSOCIATE JUDGE LESTER

GUTHRIE v BROWN [2021] NZHC 3378 [9 December 2021]

[1]    As recorded in a Minute issued on 19 November 2021, the plaintiffs sought leave to bring an application for summary judgment to enforce an order made in the Family Court that the property, subject to this proceeding (the property), be sold. The matters raised in that Minute were to some extent overtaken by a memorandum filed by Mr Paine, counsel for the defendant, on 30 November 2021. In that memorandum, the defendant, Mr Brown, confirmed he was happy: “without prejudice to sign all necessary documents” in respect of the sale of the property, on the basis that the sale proceeds were then held in trust.

[2]    When the matter was called on 9 December 2021, Mr Reeve, counsel for the plaintiffs, advised that his instructions were to seek orders and that what amounted to a settlement proposal, albeit made on an open basis by Mr Brown, was not acceptable. The plaintiffs wanted certainty in respect of the sale of the property and, in the absence of there being a challenge to the Family Court order, saw no reason why it should not be enforced.

[3]    The next High Court List date is on 4 February 2022. With the property not yet listed for sale and with the intervening Christmas/New Year period, the prospect of the property being sold, let alone a sale settling, before 4 February 2022 is remote.

[4]At my suggestion, the following position was adopted.

[5]I make the following orders:

(a)There is an order directing that the Registrar of the High Court at Dunedin is to sign on behalf of the defendant, all further legal documents that may be required to sell the property, the subject of this proceeding, on the open market (including for the avoidance of doubt, the Listing Agreement, any Agreement for Sale and Purchase of Real Estate, any Authority & Instruction and IRD Tax statement).

(b)The plaintiffs’ lawyers are authorised to act on behalf of both the plaintiffs  and  the  defendant  in  respect  of  the  conveyancing  of  the property to the purchasing party.

(c)That a half-share of the total conveyancing costs be deducted from the defendant’s share of the proceeds of sale of the property and paid to the deceased’s estate.

(d)The defendant is to provide without delay any documents required to complete anti-money laundering requirements and otherwise fully co-operate in respect of anti-money laundering formalities.

[6]    While the last order relating to anti-money laundering requirements is not included in the statement of claim, Mr Reeve raised this issue on 9 December 2021 and I clarified with Mr Paine that an order in that regard was not objected to. Consenting to the sale of the property carries with it an obligation to complete all steps to give effect to that agreement.

[7]    The reality is that Mr Brown, client having agreed to sign all documents, was not prejudiced by the orders, and they reflected what he was prepared to do in any event.

[8]    In the event that the property is sold, the net proceeds of sale are to be held undisbursed in the plaintiffs’ solicitors’ trust account on interest bearing deposit and not to be disbursed without written agreement of  the parties or order of the Court.    I record that this order is merely a holding position and is without prejudice to the plaintiffs’ position that the Family Court order is binding.

[9]Costs of this and prior appearances are reserved.

[10]   If Mr Brown is to challenge the Family Court order then an application to set aside that order must be filed and served prior to the next call on 4 February 2022. If there is no challenge to the order by that time then, as I have previously indicated, there is no reason for this Court not to give effect to the order

when the matter is next called. If the Family Court order is challenged on the grounds that the defendant’s then solicitors agreed to the order without instructions, then the defendant will have to waive privilege in respect of those instructions.

Associate Judge Lester

Solicitors:

Brittens Lawyers, Palmerston North Home Transfer Centre, Dunedin

Copy to counsel:

G A Paine, Barrister, Dunedin R M Reeve, Barrister, Dunedin