Jones v Tuhakaraina

[2024] NZHC 247

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-139

[2024] NZHC 247

UNDER

Sections 339–343 of the Property Law Act 2007

IN THE MATTER

of a property at 41 Walker Road West, Aongatete

BETWEEN

IVAN WALTER CHARLES JONES and

ANDREW ROSS WARES as trustees of the IWC Trust

Applicants

AND

ROSINA ANNE TUHAKARAINA

Respondent

Counsel:

L Blomfield for Applicants

Judgment:

(On the papers)

21 February 2024

JUDGMENT OF WOOLFORD J

[Supplementary Orders No.2]

This judgment was delivered by me on Wednesday, 21 February 2024 at 2 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

Solicitors:           Sainsbury Logan & Williams (L Blomfield), Napier Copy to:  Respondent

JONES v TUHAKARAINA [2024] NZHC 247 [21 February 2024]

[1]                  On 13 June 2023, I granted an application  made  by  the  trustees  of  the IWC Trust for the sale of the property at 41 Walker Road West, Aongatete, under s 339 of the Property Law Act 2007 (the Act). I observed that supplementary orders under s 343 of the Act may be required.

[2]                  On 30 November 2023, I made supplementary orders, which included setting a reserve of $725,000 for the sale of the property.

[3]                  Following an extensive marketing campaign, the best offer received for the property was $672,000. The trustees wish to complete a sale and purchase of the property for that sum and seek a supplementary order setting a new reserve for the property of $670,000. I am satisfied by the affidavit evidence of Ms Scott, a salesperson for the real estate company which was engaged to market the property, that $670,000 represents the fair market value of the property and vary the supplementary order accordingly.

[4]                  In addition, the trustees seek a further supplementary order under s 343(g) of the Act requiring the respondent to vacate the property by 5 pm on 28 February 2024, so that the purchasers can take vacant possession of the property when the sale is expected to settle on 1 March 2024.

[5]                  I had originally directed that the respondent  was to vacate the property by    1 October 2023, but she remains in occupation in breach of the Court order. Because of the respondent’s failure to comply with the earlier Court order that she vacate the property, the trustees seek the following supplementary orders:

(a)empowering the Police to remove the respondent and any other occupiers from the property if they have  not vacated it by  5  pm on 28 February 2024; and

(b)allowing the applicants or their agent to move the respondent’s possessions from the property (at her cost) so that the purchasers may take vacant possession on 1 March 2024.

[6]                  I am prepared to make the second of these supplementary orders but not the first. I do not believe that it is appropriate to invoke s 343(g) in order to empower the Police in the manner sought. However, the respondent should be aware that the Court has certain powers under Pt 17 of the High Court Rules 2016 for enforcement, which include an arrest order (per r 17.3(e)). Rules 17.84-17.85 confirm the Court’s power to issue an arrest warrant in relation to disobedience of Court orders. The exercise of this power is subject to the Contempt of Court Act 2019 – the Court must be satisfied beyond reasonable doubt of the requirements under s 16(3) before issuing the warrant. If so satisfied, the warrant can be issued under s 16(4)(a)(i). The Court commonly orders the arrest order to lie in Court to provide the non-complying party with a final opportunity to comply with the original order. Burmester v Burmester is such an instance.1

[7]                  There will, accordingly, be orders of the Court in terms of the draft order attached to counsel’s memorandum, dated 9 February 2024, with the following amendments:

(a)paragraph 5 is amended to read “The respondent shall vacate the property by 5:00 pm on 28 (not 8) February 2024”; and

(b)paragraph 6 is deleted.

[8]In all other respects, the draft order is confirmed.

Woolford J

1      Burmester v Burmester [2018] NZHC 2352, [2018] NZAR 1540 at [38].