H v W

[2024] NZHC 3041

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-756

[2024] NZHC 3041

UNDER

Trusts Act 2019 and Property (Relationships) Act 1976

IN THE MATTER

of an application for the removal and replacement of a trustee

BETWEEN

H as Trustee of the Trust

Plaintiff/Counterclaim Defendant

AND

W as Trustee of the Trust Defendant/Counterclaim Plaintiff

Hearing:	On the Papers at Auckland
Judgment:	18 October 2024

JUDGMENT (NO.2) OF POWELL J

[Further directions to implement sale and other orders]

This judgment was delivered by me on 18 October 2024 at 4.00 pm.

Pursuant to R 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

H as Trustee of the Trust v W as Trustee of the Trust [2024] NZHC 3041 [18 October 2024]

[1]        The defendant, seeks further directions to implement a range of orders previously made by this Court in relation to proceedings between the defendant and the plaintiff. Specifically:

(a)orders for sale of the family home in Fairview Heights, Auckland (“the sale order”);1

(b)further orders for the implementation of the sale order as well as an order for costs payable by the plaintiff in the sum of $15,751.50 in relation to her attempt to set aside the sale order (“the implementation and costs order”);2 and

(c)orders in relation to property owned by the Family Trust and relationship property claims between the defendant and the plaintiff (“the relationship property orders”).3

[2]        In respect of both the sale order4 and the relationship property orders,5 leave was reserved for the parties to seek further directions from the Court so as to implement the various orders.

Why are further orders sought?

[3]        The defendant has advised the Court that since the sale order and the relationship property orders were made, the plaintiff has not cooperated and although the registrar of the High Court has signed transfer documents on the plaintiff’s behalf, she remains in occupation of the family home. As a result, one agreement for sale and purchase in respect of the family home has been cancelled and another is currently at risk in the event that vacant possession cannot be given. Accordingly, the defendant seeks an occupation order so as to ensure the plaintiff vacates the family home and the property can be prepared for sale and subsequently transferred with vacant possession.

1 [H] v [W] [2023] NZHC 2653 at [37].

2 [H] v [W] [2023] NZHC 3499 at [37]; and [H] v [W] HC Auckland CIV-2022-404-756,

12 February 2024 (Minute of van Bohemen J) at [21(c) and (d)].

3 [H] v [W] [2024] NZHC 1383 at [48]–[49] and sch.3.

4      See [H] v [W], above n 1, at [37](c).

5      See [H] v [W], above n 3, at sch 3 cl 15.

[4]        In the meantime, two other properties that were directed to have been sold in relation to the relationship property order (“Te Atatū South property” and “Long Bay property”) are currently also in the process of sale, and the defendant is not sure which of the three properties now for sale will be sold first.

[5]        As at the moment, only the sale order provides for the defendant’s costs to be deducted on settlement, the defendant also seeks amendment to the relationship property orders so as to enable the deduction of his costs from whichever of the properties ordered to be sold.

Discussion

[6]        Having read the affidavit of the defendant, the supporting memorandum, and the draft orders sought, I am satisfied that the additional orders sought are both appropriate and necessary. While it is clear from the earlier judgments of Campbell J that the plaintiff has no desire to move from the family home, that issue has long since been determined and it is important that the property be sold with vacant possession without any further delay or any potential loss of value to the parties.

[7]        Moreover, as the defendant has noted, the effect of the relationship property orders is that the plaintiff has obtained one of the properties obtained by the Family Trust, the Belmont property, in her own name and she will therefore not be without a property to move to in the event she is required to leave the family home.

[8]I therefore order as follows, as per the draft orders sought:

(a)An occupation order is made in the defendant’s favour, granting him the right to exclusively occupy the Family Home (thereby requiring that the plaintiff vacate the property);

(b)Within 10 working days of the order being made, the plaintiff and any other occupants of the Family Home are to vacate the property taking with them or disposing of all chattels inside the property; and

(c)The relationship property orders are varied so that in addition to the payments to be made from the plaintiff to the defendant at sch 3 cl 13(c)(i)–(ii), provided that the defendant has not already been paid this amount, the plaintiff is to pay the defendant costs of $15,751.50 for the hearing of the sale order and the hearing of the application to set aside the sale order.

[9]        For the same reasons as set out in my earlier judgment and subsequent minute, I direct that this judgment be redacted in the same way to the earlier judgment was prior to publication.

Powell J