Headley v Headley

[2020] NZHC 2051

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2019-416-16

[2020] NZHC 2051

UNDER THE

Property Law Act 2007

IN THE MATTER OF

an Application under s 339 Property Law Act 2007

BETWEEN

TRACEY ANNE HEADLEY

Plaintiff

AND

PETER JOHN HEADLEY

Defendant

Hearing:	13 August 2020
Appearances:	A Simperingham and J H Egan for Plaintiff Defendant in Person
Judgment:	13 August 2020

JUDGMENT OF CLARK J

[1]    Tracey Headley and Peter Headley are the registered proprietors as tenants in common in equal shares of a property in Gisborne (the property). Ms Headley applies under s 339 of the Property Law Act 2007 (the PLA) for an order for the sale of the property. She also seeks ancillary orders relating to valuation, distribution of the proceeds of sale and an option to be given to her mother to purchase the defendant’s half share for half the market value.

[2]    The defendant not having taken any steps, on 17 December 2019 the proceeding was directed to be set down for a formal proof hearing.

HEADLEY v HEADLEY [2020] NZHC 2051 [13 August 2020]

[3]    An affidavit of service shows that on 6 August 2020 Mr Headley was served with copies of documents including the submissions to be made, the draft order applied for, and the plaintiff’s affidavit for the formal proof hearing.

[4]    On the morning of the hearing Ms Soucie filed a memorandum of counsel advising that Mr Headley had retained her firm, Bay Legal Ltd, on 12 August 2020. The thrust of counsel’s memorandum was to explain the defendant’s delay in instructing counsel and to advise that the defendant did not oppose the orders sought. He wished, however to be heard on the issue of costs.

[5]    Mr Headley appeared in person on the morning of the hearing. I indicated to him that he was being granted a significant indulgence.  I proceeded to hear from  Mr Headley on his preferences for collecting his property, the timeframe within which arrangements can realistically be made, and the length of time it is likely to take him to collect his property from the house. I also heard from Mr Headley on costs.

[6]    Mr Simperingham had calculated the plaintiff’s costs on a 2B basis which I said I was prepared to award on the basis that Ms Headley had established her entitlement to an order for sale under the PLA. Mr Headley reviewed the calculations. He agreed to an award in the sum of $14,831.29, subject to Mr Simperingham checking the amount claimed in relation to the statement of claim.

[7]The end result is that the following orders are made by consent:

After reading submissions and the affidavit of Tracey Anne Headley and after hearing Mr Simperingham the solicitor on behalf of the plaintiff  Tracey Anne Headley, and Mr Headley in person, this Court orders:

(a)The Property at 32 Bushmere Road, Gisborne (record of title GS3A/1009) is to be sold in accordance with the following process:

(a)A market valuation for the Property is to be obtained by the plaintiff from a registered valuer of the plaintiff’s choosing;

(b)The plaintiff’s mother, Sandra Headley (“Sandra”) is to be given the option to purchase the defendant’s half share of the Property for half the property’s market value as obtained from the registered valuer;

(c)If Sandra elects not to purchase the defendant’s half share in the

Property within four weeks of the date of the order, then the Property is to be sold by auction within four months of the date of the order;

2         Upon sale of the property:

(a)The defendant is to receive a payment equal to half the market value of the Property less:

i         half the loan balance as at 6 April 2018 being the sum of

$135,383.72.

ii       half the costs associated with the sale of the Property including any legal fees and real estate agency (including auctioneers’) fees.

iii       any costs awarded against the defendant by the Court.

(b)The plaintiff is to receive the remainder of the proceeds of sale.

3.The defendant, together with any person he requires to assist him, is to collect his belongings during the weekend of 29-30 August 2020 between 9 am and 6 pm. If the plaintiff elects not to be there, she may have a representative in her absence, who may be her mother.

4.The defendant is to pay the plaintiff costs in the sum of $14,831.29.

[8]    On 12 August 2020 the country was moved into alert levels 2 and 3 in response to COVID-19 being confirmed in the community. In the event that unforeseen circumstances make it impracticable for the defendant to collect his belongings in accordance with these orders, the defendant  is  directed  to  discuss  matters  with Mr Simperingham giving good notice. Leave is reserved to the plaintiff to apply to the Court if that becomes necessary.

Karen Clark J

Solicitors:

Woodward Crisp, Gisborne for Plaintiff Bay Legal Ltd, Hastings for Defendant