Hayes v MacAuley

[2022] NZHC 1386

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-463-57 [2022] NZHC 1386

IN THE MATTER OF

an application for a Sale Order pursuant to ss 339-343 of the Property Law Act 2007

BETWEEN

AMY MAY HAYES

Plaintiff

AND

PAUL ANTHONY MACAULEY

Defendant

Hearing:	12 April 2022
Appearances:	A Kershaw for the Plaintiff
Judgment:	14 June 2022

JUDGMENT OF HARVEY J

Te Whakataunga ā Kaiwhakawā Mātāmua Harvey

This judgment was delivered by me on 14 June 2022 at 10 am pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
Hamertons Lawyers, Whakatāne

HAYES v MACAULEY [2022] NZHC 1386 [14 June 2022]

Introduction

Hei kōrero tīmatanga

[1]    Amy Hayes has applied for a sale order and ancillary orders under ss 339 and 343 the Property Law Act 2007 regarding a residential dwelling at 17 Owen Road, Kawerau which she co-owns with the respondent Paul MacAuley, her first cousin. The property in issue is that was purchased on 23 May 2018 for $205,000. The parties are recorded on the title as tenants in common in equal shares. Ms Hayes says that the parties originally intended that the property was to be owned on an equal basis and that they would similarly make joint contributions to its outgoings including rates, insurance, maintenance and mortgage payments.

[2]    The applicant contends that the respondent, while initially meeting his obligations as a co-owner, has since moved out of the property, failed to continue with his payments and entirely disengaged from communication, despite her repeated yet unsuccessful efforts at contact. Accordingly, the applicant considers that her only option is to seek a sale order to enable her to purchase the respondent’s share at a fair market value, subject to various deductions and set offs.

[3]The issue for determination is whether the application should be granted.

Procedural history

Ko te hātepe ture o te tono nei

[4]    Ms Hayes filed her application on 22 July 2021. During the period 1 May 2020 to November 2021, as set out in affidavits dated 8 November 2021 and 5 January 2022, Ms Hayes attempted to contact and engage with Mr MacAuley via email and telephone, including through her solicitors, without success. On 24 November 2021,

Associate Judge Sussock issued orders for substituted service.1

[5]    No response was received by the Court at any stage from Mr MacAuley. Accordingly, the application was set down to proceed by way of formal proof in the

1      Hayes v MacAuley HC Auckland CIV-2021-463-57, 24 November 2021 (Minute of Sussock AJ).

absence  of  any  engagement  from  the  respondent.    Affidavits in support of the substantive proceeding were filed on 8 February 2022.

[6]    Following the hearing and receipt of a draft order from counsel, and in light of concerns I had as to the fair calculation of the parties’ shares of the property, I issued a minute on 2 June last requesting a further submission from Ms Kershaw on the calculation of Mr MacAuley’s share if it were to be purchased by Ms Hayes. These further submissions, dated 3 June 2022, were received on 7 June 2022.

Background

Kōrero whānui

[7]    Focussing first on the financial background to the claim, the purchase price of the property was satisfied, according to the applicant on the following basis:

(a)$16,124.17 contributed by the applicant from a KiwiSaver withdrawal;

(b)$47,563.45 by the respondent from a KiwiSaver withdrawal;

(c)$5,000 home start grant to the applicant;

(d)$5,000 home start grant to the respondent;

(e)joint borrowing from ASB Bank procured by mortgage number 11095764.3 over the property.

[8]    The total amount drawn down on the mortgage was $164,000. Counsel confirmed that not all funds drawn were required to settle the purchase. The balance of the mortgage, approximately $30,000, was paid to a joint ASB account in the name of the parties, to be utilised for renovations, according to the applicant.

[9]    Ms Kershaw, counsel for Ms Hayes, confirmed that a total of $31,215.83 was paid from the joint account following purchase of the property for renovations. The joint account has also been utilised to receive funds from the parties on account of property outgoings including rates, insurance, lawnmowing and mortgage payments. According to the evidence, fortnightly mortgage lending repayments are $317.20 with

weekly rates payments being $55.00. Fortnightly payments to AA Insurance are

$43.81.

[10]There have also been “non renovation” withdrawals from the joint account:

(a)$62.00 reimbursed to the applicant’s credit card for petrol for the respondent on 1 August 2019;

(b)$93.00 reimbursed to the applicant for food for the respondent from New World on 2 August 2019;

(c)$500 loan to the respondent on 21 August 2019;

(d)$1,166.25 for legal fees for the applicant on 30 June 2020; and

(e)$522.50 for legal fees for the applicant on 17 June 2020.

Ms Hayes’ evidence

Ngā kōrero a te Kaitono

[11]   Ms Hayes deposed that when the property was purchased, Mr MacAuley was living in Hamilton but would come and stay from Friday through to Tuesday each week. It was agreed that he would contribute $120.00 per week towards the property’s outgoings. On the other hand, Ms Hayes resided at the property fulltime, and it was further agreed she would contribute $464.50 per fortnight towards the outgoings. This sum provided for Mr MacAuley to meet all the mortgage lending repayments while Ms Hayes paid all utility and food costs.

[12]   Then on 8 October 2018, Mr MacAuley moved to the property to live full time where it was agreed he would complete renovations during the week and the parties would work on renovations together during weekends. It was also agreed, according to Ms Hayes, that Mr MacAuley would increase his payment by $65.00 per fortnight. However, Mr MacAuley did not complete any renovations at the property and did not contribute to utility or food costs. Nor did he increase his fortnightly payment, contrary to the parties’ previous agreement. On 6 March 2019, according to Ms Hayes, Mr MacAuley ceased making the payments of $120.00 per week.

[13]   Ms Hayes further deposes that between March 2019 and February 2020, while he was still resident at the property, Mr MacAuley’s behaviour became “erratic and angry, disappearing for weeks at a time”, and then returning late at night without warning. Unsurprisingly, this frightened Ms Hayes and her daughter. When Mr MacAuley did return, Ms Hayes stated that both herself and her daughter felt uncomfortable.

[14]   By February 2020, Ms Hayes asked Mr MacAuley to leave following an incident where she says that he was aggressive and threatening, screaming in the applicant’s face and kicking objects around the house and yard, as well as threatening to kick Ms Hayes’ dog. Mr MacAuley returned several days later to collect his belongings. He has not returned since.

[15]Ms Hayes claimed that Mr MacAuley’s total payments outstanding, based on

$265.00 per fortnight from 19 March 2019 to February 2020, are $6,360.00.2 In the meantime, Ms Hayes has continued to personally meet all the property outgoings since Mr MacAuley vacated.3 Ms Hayes also deposed that she has completed significant renovations on the property at considerable expense and utilising her own labour for much of the work.

[16]   In her chronology, filed with the Court on 29 March 2022, Ms Hayes says that in April 2020 she secured enough finance to repay the existing lending and purchase Mr MacAuley’s equity, based on his capital contribution offset by unpaid outgoings.

[17]   A written offer to purchase his share in the property was sent to Mr MacAuley on 1 May 2020 via his usual email address, but no reply was ever received. A text was sent to Mr MacAuley on 6 May 2020, again without response. Then on 8 May 2020, Ms Hayes’ solicitors tried to contact Mr MacAuley on his usual phone number without success. Following that on 20 May 2020, a further email was sent by Ms Hayes’ solicitors to Mr MacAuley, which was also ignored.

2      Being 48 weeks multiplied by $132.50.

3       This is set out in detail at para 24 of Ms Hayes’ affidavit of February 2022.

[18]   Then on 27 May 2020, Mr MacAuley was placed on notice by Ms Hayes’ solicitors that Ms Hayes intended to apply to the Court for a division of the property under the Property Law Act. No reply was received. Following that, on 22 February 2021, Ms Hayes wrote to Mr MacAuley inviting him to sell his half-share for

$91,945.00 with Ms Hayes repaying the outstanding mortgage. Again, no response was received.

[19]   Loan details attached to Ms Hayes’ affidavit confirm that, as at 3 February 2022, the balance outstanding on the mortgage was $150,250.91.

Applicant’s submissions

Ngā tāpaetanga

[20]    With the above background, Ms Kershaw argued that the co-ownership of the property is now untenable. Counsel submitted, citing Keery v Thomas in support,4 that the Court has previously held that there is jurisdiction to compel any unwilling party to sell to a co-owner per s 339 of the Property Law Act 2007.

[21]Regarding the relevant s 342 factors, Ms Kershaw submitted that:

(a)The parties each own a half-share;

(b)The property is a modest home in Kawerau where Ms Hayes resides and which is in the locale of her employment. Mr MacAuley no longer resides in Kawerau and has no connection to the property other than co-ownership.

(c)While the parties’ initial contribution to the property was unequal, since then:

(i)Mr MacAuley has abandoned the property and has made no payments towards mortgage lending or rates since 6 March 2019.

(ii)Ms Hayes has met all outgoings and is not seeking reimbursement from the date Mr MacAuley left the property (notwithstanding that Mr

4      Keery v Thomas [2015] NZHC 113 at [20] – [23].

MacAuley will receive a passive increase in equity with no on-going contribution).

(iii)Ms Hayes has completed the renovations at the property.

(d)The parties are tenants in common on the title with equal share, with no property sharing agreement or agreement to share the ownership in any way other than as registered on the title.

(e)Ms Hayes would suffer hardship from a refusal to divide the property, which is her home. She is currently locked into a co-ownership structure with no guarantee to her continuing exclusive occupation of the dwelling. If she were forced to sell, she would have to re-purchase in a difficult market.

(f)The relationship between the parties has broken down irreconcilably, with the two unable to work together constructively relating to co-ownership issues.

[22]   Accordingly, Ms Kershaw sought an order under s 339(1)(c) of the Property Law Act providing that Ms Hayes purchase Mr MacAuley’s share at market value as assessed by a registered valuer.

[23]   In addition to the orders sought in writing, at the hearing Ms Kershaw sought that the applicant’s solicitors be authorised to hold the respondent’s settlement sum in their solicitor’s trust account on Mr MacAuley’s behalf until such time as he provides instructions as to payment. Counsel noted that this was a practical suggestion addressing the lack of engagement by the respondent and the complexities of paying Mr MacAuley out any sum of money where he refuses to communicate.

Further submissions

[24]   As foreshadowed, on 3 June 2022, counsel duly provided further submissions as to a more exact calculation of the respondent’s interest in circumstances where he had initially paid $31,439.28 more than the applicant when the property was purchased. Ms Kershaw submitted that the relevant figure when assessing the

disparity is $15,719.64, as the purchase been equal, the respondent would have paid

$15,719.64 more and the respondent would have paid $15,719.64 less.

[25]   In terms of the approach to be taken to quantification, counsel pointed to Muir J’s comments in Bunyan that, when assessing the value of the respective parties contributions, “an approach which focuses on the ‘fruits of the contribution’ rather than a simply arithmetical approach is to be preferred”.5

[26]   Counsel submitted that notwithstanding the initial disparity of purchase contributions, the parties registered the title to the property as tenants in common in equal shares. This shows their intention as to equality and an anticipation that their net input would equalise by their arrangement over time. Particularly as the applicant would be meeting the “lion’s share of the outgoings” while they both had rights of occupation. Ms Kershaw contended that it is also relevant that the respondent has taken no steps at any stage to rebut this position.

[27]   In the present case, counsel argued, Ms Hayes’ evidence shows that the initial unequal contribution has been more than equalised by her subsequent contributions.

[28]   Regarding renovations, Ms Kershaw submitted that Ms Hayes completed all the physical labour on her own and that, when the parties purchased the property, they knew that it would require extensive renovation. Counsel pointed to the renovation works which Ms Hayes deposed she had completed in her affidavit evidence:

reglaze paint and add hardware to windows, water blast repair and paint deck; replacing blinds; repairing light fittings; painting interior, laying concrete, vinyl flooring in the bathroom; removing carpet and preparing wood floors for varnish; renovate kitchen; adding new carpet edging; wall paper feature walls; repair walls; paint reglaze and fix locks to front door; add laundry cupboard; erect fencing and lockable gate; erect 2 x sheds one with concrete pad and one with wooden platforms and framing both lockable.

[29]   Ms Kershaw expanded this list to confirm that Ms Hayes had also completed (in addition to the renovations previously deposed):

(i)Tiling & bathroom remodel.

5      Bunyan v Parish [2016] NZHC 2225 at [33].

(ii)        Repair & replace all techs in roof, primed and started to paint roof, 1/3 painted but not completed.

(iii)       Clean-up of section, which was left full of junk by the previous owner & added to by the Defendants hoarding of broken things.

(iv)       Removal of rubbish left by the Defendant, broken pipes, scrap wood, old, rusted tools (many items still remain).

[30]   Of these, Ms Kershaw confirmed her instructions that all of this was completed by Ms Hayes and her family, apart from the following tasks completed by contractors:

(i)Concrete driveway – Rossway Contracting

(ii)Kitchen remodel – Phil’s Plumbing - Gasfitter for new gas hob installation, plumber for new pipes to sink and dishwasher.

(iii)Hot water cylinder – Jones & Coles electrical new elements & ajax valves.

(iv)Glasses cutting – Glassman & Locksmiths 20 x panes.

(v)Lounge blinds too large to buy off shelf – custom made & fitted by Guthrie Bowron Whakatane x 3.

[31]   Ms Kershaw submitted that Ms Hayes “sweat equity” more than equalises the initial unequal contributions. Ms Hayes is also willing to file and affidavit confirming same and that she would have spent at least 30 hours per week working on the property if needed. Even at a conservative rate of $25 per hour, Ms Kershaw says this would result in a sum of $117,000 of which Mr MacAuley’s half would be $58,500. Counsel sought leave to file an affidavit as to the value of the work and increase in value of the property if the court is not persuaded that a nominal sum is appropriate or that in totality it is evident that the contributions have been offset.

[32]   Regarding outgoings, Ms Kershaw submitted that Mr MacAuley has made no payments towards the mortgage, related outgoings and maintenance from 6 March 2019. This was contrary to the parties’ agreement that he would contribute $120 per week when not living at the property full time. Counsel contended that, having not paid  any  contribution  from  February  2020  to  June  2022,  Mr  MacAuley  owes

$14,520.00 in unpaid contributions to Ms Hayes. By not seeking to be reimbursed for that particular sum, Ms Kershaw argued that the initial difference in the purchase price is offset. Although Ms Hayes continues to seek $6,360 reimbursement for the $265.00

which was agreed to be paid per fortnight while Mr MacAuley was living at the property full-time, counsel submitted that this is not a concession that this is the total sum that Mr MacAuley has benefited by.

[33]   Turning to property maintenance and capital growth opportunity, Ms Kershaw submitted that the fruits of Ms Hayes’ contribution include her continued sole maintenance of the property and that there is a value to this. Ms Kershaw argued that the value of the property has likely increased some $200,000 over the period of 23 May 2018 to the present. Although a registered valuation has not been sought, as counsel wished to ensure that it would not expire before the order was issued, using a conservative property value of $400,000 (drawn broadly from the valuation from homes.co.nz), Ms Kershaw calculated that the return on investment for the respondent is some 137 per cent. In circumstances where the respondent has made no repayments and has refused to communicate with his co-owner, this return on investment is primarily due to Ms Hayes’ dedication ensuring the property remained sustainable and the mortgage and outgoings were paid.

[34]In summary, Ms Kershaw submitted that:

… it is respectfully submitted that the $15,719.64 initial contribution made by the Defendant on behalf of the Plaintiff has been more than offset by:

(a)                   Opportunity value to the Defendant arising out of growth of investment while not meeting his obligations thereto.

(b)Maintenance of the property by the Plaintiff.

(c)                   Improvements based on the Plaintiff’s labour at 50% $58,500.00 (real benefit likely higher).

(d)                   The $14,520.00 owed by the Defendant to the Plaintiff for property contributions for the period February 2020 to June 2022.

Legal principles

Ngā mātāpono o ngā ture

[35]   Section 339 of the Property Law Act empowers the Court to make orders for the division of property owned by co-owners on the application of one of those co- owners:

339     Court may order division of property

(1)A court may make, in respect of property owned by co-owners, an order—

(a)       for the sale of the property and the division of the proceeds among the co-owners; or

(b)      for the division of the property in kind among the co-owners; or

(c)       requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.

(2)An order under subsection (1) (and any related order under subsection (4)) may be made—

(a)       despite anything to the contrary in the Land Transfer Act 2017; but

(b)      only if it does not contravene section 340(1); and

(c)       only on an application made and served in the manner required by or under section 341; and

(d)      only after having regard to the matters specified in section 342.

(3)Before determining whether to make an order under this section, the court may order the property to be valued and may direct how the cost of the valuation is to be borne.

(4)A court making an order under subsection (1) may, in addition, make a further order specified in section 343.

(5)Unless the court orders otherwise, every co-owner of the property (whether a party to the proceeding or not) is bound by an order under subsection (1) (and by any related order under subsection (4)).

[36]   Section 342 lists factors the court must have regard to in considering an order under s 339(1) (and any related further orders):

(a)the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:

(b)the nature and location of the property:

(c)the number of other co-owners and the extent of their shares:

(d)the hardship that would be caused to the applicant by the refusal of the order, in contrast with the hardship caused to any other person by the order:

(e)the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:

(f)any other matters the court considers relevant.

[37]   Finally, a court making an order under s 339(1) may make further ancillary or additional orders specified in s 343.6 While s 343 sets out specific further orders the court may make, it also broadly empowers the court to make any further order that “provides for, or requires, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under s 339(1).”

Discussion

Kōrerorero

[38]   Ms Hayes’ application seeks orders under s 339(1)(c) of the Property Law Act. This raises an initial question of whether the Court can compel a co-owner to sell their share in a property to another co-owner, when it is the latter who applies for the order.

[39]   Overall, I accept that s 339(1)(c) can be applied to facilitate a sale from an unwilling co-owner in appropriate circumstances.7 More so when the co-owner has failed or refused to engage in the process.8 In any case, the section is remedial with a wide discretion given to the Court. As the Court of Appeal commented in Bayly v Hicks, under the s 339 regime a judge should “consider what is the most just and practical way through the impasse before the court.”9  Accordingly, I am satisfied that

6      Property Law Act 2007, s 339(4).

7      See, for example, Lake Hayes Property Holdings Ltd v Petherbridge [2014] NZHC 1673, (2014) 15 NZCPR 590 at [62]–[64]; Keery v Thomas, above n 5, at [20]–[23]; Bunyan (as executors of the estate of Bunyan (deceased)) v Parish, above n 6, at [44]–[45]; and Minehan v McGuigan [2020] NZHC 1686, (2020) 21 NZCPR 135 at [29]–[30]. For the contrary view see Holster v Grafton (2008) 9 NZCPR 314 (HC), Forgarty J did not necessarily exclude the possibility, but stated that that power would not be readily exercised given the remedial nature of ss 339 – 343 and basic value and respect for property rights.

8      A factor considered by Muir J in Bunyan (as executors of the estate of Bunyan (deceased)) v Parish, above n 6, at [44] – [45].

9      Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [32].

the Court can make the orders sought by Ms Hayes, and given Mr MacAuley’s lack of opposition.

[40]   I note that there is no valuation of the property before the Court. Ms Kershaw confirmed that that was to ensure that the valuation will not expire before the order is issued. Pursuant to s 339(3), the Court does have the ability to require a valuation prior to making an order, however, I am satisfied that in this case the formula proposed by the Ms Hayes, and the engagement of Bay Valuation Services Ltd to give a registered valuation, is appropriate.

[41]   Effectively, Mr MacAuley’s position in relation to his share of the property is neutral. He has chosen to take no part in these proceedings. He has ceased contact with his co-owner. He has not returned to the property since February 2020. Although he will lose ownership of the house, on the orders proposed he will be paid was is due to him at a fair and reasonable price.

[42]   Turning to the s 342 factors. First, it is relevant that Mr MacAuley equally owns a 50 per cent share of the property and that the Court must give respect to property rights. On that point, I am cognisant that this order will be made without his engagement. However, this is not from a want of trying by Ms Hayes. Her first offer to purchase was made over two years ago on 1 May 2020.

[43]   All other relevant factors align in Ms Hayes’ favour. The property is in Ms Hayes’ locale, while Mr MacAuley no longer lives in Kawerau. There are no other co-owners to consider. In terms of balancing hardship, co-ownership has resulted in an untenable situation for Ms Hayes. Her occupation of her home is subject to Mr MacAuley arriving at any time as co-owner, when she alone has maintained the property. He has been uncommunicative and uncooperative in co-ownership issues. There is no evidence before the Court as to the hardship to Mr MacAuley. The lack of engagement in these proceedings can be viewed as confirmation that his personal connection to the property is limited. Mr MacAuley will lose his share in the property, but the balance is in Ms Hayes’ favour on this factor.

[44]   Regarding the value of Ms Hayes’ contribution to the cost of improvements to, or maintenance of, the property, the evidence confirms that, in the absence of a competing case from the respondent, Mr MacAuley has failed to adhere to his commitments leaving Ms Hayes with all the financial and maintenance responsibilities. Every reasonable effort has been made to contact him, but those efforts have remained unsuccessful. Accordingly, I am satisfied that the continuing co-ownership of the property between Ms Hayes and Mr MacAuley is no longer tenable, and that Mr MacAuley’s share should be purchased and paid out to him by Ms Hayes.

[45]   Counsel confirmed during the hearing that a valuation and an appraisal from a local real estate agent would be obtained to assist in the calculation of values. As I intimated at the hearing, I was concerned about the calculation of Mr MacAuley’s share of the property, given his initial contribution from KiwiSaver was much larger than Ms Hayes’, and requested further submissions for that purpose.

[46]   Based on the information in the further submissions and taking Muir J’s approach in Bunyan of focussing on the overall benefits of the contributions rather than a strictly arithmetical approach, I am satisfied that Ms Hayes has offset any initial disparity. As an overarching consideration, the parties are registered the title as equal co-owners and did nothing to displace this presumption of equal 50/50 ownership at the time or subsequently. Since then, Ms Hayes has carried out extensive renovations as borne out in her evidence, applying her own labour in no small part. She is also not seeking any contribution for outgoings for the period Mr MacAuley did not inhabit the property, which itself is some $14,520 which she could otherwise seek to reclaim. Ironically, Mr MacAuley has not contributed in any meaningful way to the property but will benefit from Ms Hayes’ contributions to increase the property’s value.

[47]   Ms Kershaw has offered to file additional evidence as to the value of the work and increase in value of the property if needed. However, I do not consider that this is necessary here, where Ms Hayes’ contributions in terms of money, time and effort have significantly overtaken the initial disparity in payment.

[48]   As far as the method of establishing an appropriate value for the property, and the settlement sum, I adopt Ms Kershaw’s proposal as is reflected in the formal orders. However, noting that the Court may make orders directing how the cost of the valuation is to be borne under s 339(3), I do not consider it fair that half the valuer’s costs should be shared with Mr MacAuley. He may have not engaged in these proceedings, but equally, he has had no say in the choice of the valuer or that the proceedings were initiated, notwithstanding that he is an equal co-owner with associated property rights.

Decision

Whakataunga

[49]The application of Amy Hayes for sale and related orders is granted.

[50]   Orders are now issued, per s 339(1)(c) of the Property Law Act 2007 for the division of the property between the co-owners, that the Applicant purchase the Respondent’s 1/2 share in the property at market value as assessed by a Registered Valuer.

[51]Ancillary orders per ss 339(4) and 343 Property Law Act 2007 are now issued:

(a)That Bay Valuation Services Ltd be instructed to provide a registered valuation of the property at the Applicant’s cost.

(b)That settlement date be 35 days after the registered valuation is provided (“settlement date”).

(c)That the Applicant do pay to the Respondent on settlement date a settlement sum in consideration for his 1/2 share of the property calculated as follows:

(i)Half of the assessed market value of the property.

(ii)Minus half of the mortgage lending which is to be repaid on settlement date.

(iii)Minus $6,360.00 on account of compensation for non-payment of outgoings whilst in occupation.

(iv)Plus $516.55 to account for the Applicants withdrawals from the mortgage account.

(v)                  Minus costs awarded on this application. (“settlement sum”).

(d)That the Registrar of the High Court be authorised to execute any conveyancing documents on behalf of the Respondent to enable the sale of the Respondents 1/2 share of the property to proceed.

(e)The Applicant’s solicitors are authorised to hold the Respondent’s settlement sum in their Solicitors Trust account for the Respondent until such time as he provides instructions as to payment

Costs

Whakataunga Utu

[52]   I am satisfied that costs on a 2B basis are reasonable and appropriate. I am also satisfied that the costs as claimed are appropriate. Accordingly, I award costs of

$19,956.50 and disbursements of $3,923.50.

Harvey J