Hull v Calvert - [2019] NZHC 154

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-3010

[2019] NZHC 154

BETWEEN DAVID MARK HULL, MICHELLE KAREN HULL and TRUSTEE MANAGEMENT LIMITED
Judgment Creditor

AND

JOHN BARRY CALVERT

Judgment Debtor

Hearing: 7 February 2019

Appearances:

L H George and K A Logan for the Judgment Creditors No appearance for the Judgment Debtor

S C Bird for Top Energy Ltd

Judgment:

14 February 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 14 February 2019 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Counsel/Solicitors:

Mr D M Hughes, Ms L M Van, Ms L H George and Ms K A Logan, Anthony Harper, Solicitors, Auckland
Mr R C Mark, Solicitor, Kerikeri
Mr M Heron QC, Barrister, Auckland
Mr S Bird, Greenwood Roche, Solicitors, Auckland

HULL v CALVERT [2019] NZHC 154 [14 February 2019]

[1] The applicants are trustees of the Hull Family Trust. They seek to enforce an earlier judgment of this Court against the judgment debtor, John Barry Calvert (Mr Calvert). That judgment, for $672,297.12 plus GBP502.05, was entered by way of summary judgment on 21 March 2017.

[2] The applicants obtained a charging order on 12 May 2017 against Mr Calvert’s interest in a block of land situated on Whakataha Road, Waimate North, Northland (the land).1 The amount charged is $672,297.12. The land was valued at $845,000 (plus GST, if any) in September 2018.

[3] There has been no appearance for Mr Calvert in the proceeding, either in relation to the application for summary judgment or since. It seems Mr Calvert no longer lives in New Zealand. He could not be served personally, but has been served in the United Kingdom in accordance with an order for substituted service.

[4] The applicants now seek orders enabling a sale of the land such that the proceeds can be used towards satisfaction of the judgment debt.

[5] The registered proprietors of the land are Mr Calvert, Marites Calvert (Ms Calvert) and James Hay Pension Trustees Ltd (James Hay) (as joint tenants2).

[6]The applicants’ enquiries indicate that:

(a)Ms Calvert is the estranged wife of Mr Calvert.

(b)James Hay is a pension fund registered in the United Kingdom.

(c)The registered proprietors of the land were, at a time, trustees of Mr Calvert’s United Kingdom pension scheme trust, the Stratford- Upon-Avon Butterfly Farm Executive Pension Scheme (the Pension Scheme).

1 Lot 1 on Deposited Plan 359752 containing an area of 24.0600 hectares more or less and contained on Certificate of Title Identifier 243031 (North Auckland Registry).
2 Section 47, Land Transfer Act 2017.

[7] The applicants submit that Ms Calvert and James Hay no longer have any interest in the land.

Background

[8] On 5 February 2018, the Court made an interlocutory order under r 17.45 of the High Court Rules 2016. It named parties with a potential interest in the land, and ordered them to file an affidavit with the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hull v Calvert

Details

AGLC: Hull v Calvert [2019] NZHC 154
Case: [2019] NZHC 154
Decision Date: 14 February 2019

CaseChat Overview and Summary

The case of Hull v Calvert involves an application by David Mark Hull, Michelle Karen Hull, and Trustee Management Limited, the trustees of the Hull Family Trust, to enforce a judgment against John Barry Calvert, the judgment debtor. The judgment, entered on 21 March 2017, was for $672,297.12 plus GBP502.05. The applicants sought to enforce the judgment by obtaining a charging order against Calvert’s interest in a block of land in Waimate North, Northland. The land was held jointly by Calvert, Marites Calvert, and James Hay Pension Trustees Ltd. The applicants sought orders to allow the sale of the land, with the proceeds used to satisfy the judgment debt.

The primary legal issues in the case involved the appropriate legal mechanisms to enforce the judgment against the debtor's interest in jointly held land, especially where other joint tenants might also have interests in the land. The applicants proposed two potential avenues for sale orders: altering the record of title to remove other joint tenants and vesting ownership in Calvert alone, or alternatively, selling the land as is and distributing the proceeds according to the respective interests of the joint tenants. The court considered the provisions of the Land Transfer Act 2017, the inherent jurisdiction of the court, and the rules of the High Court in determining the appropriate course of action.

The court concluded that while there was some evidence suggesting Calvert was the sole beneficial owner of the land, it was not appropriate to exercise the court's inherent jurisdiction to alter the title or vest ownership in Calvert alone at that stage. Instead, the court decided to order a sale of the land, with specific directions regarding the distribution of the net proceeds of sale. The sale was to be conditional upon the purchaser granting an easement to Top Energy Ltd, which had a registered caveat over the land. The court directed that the proceeds of the sale be applied towards repaying the judgment debt, with any remaining proceeds to be held in court pending a claim by any of the joint tenants within a specified period.

The final orders included a detailed schedule outlining the procedures for the sale of the land, the handling of the proceeds, and the conditions under which the sale was to be conducted. The sale order was designed to protect the interests of all parties involved, while also ensuring that the judgment debt was satisfied as effectively as possible.

Orders