Jones v Tuhakaraina

[2023] NZHC 3440

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-139

[2023] NZHC 3440

UNDER

Rule 19.5 of the High Court Rules 2016 and under s 339 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)

30 November 2022

JUDGMENT OF WOOLFORD J

[Supplementary orders]

This judgment was delivered by me on Thursday, 30 November 2023 at 9:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

JONES v TUHAKARAINA [2023] NZHC 3440 [30 November 2022]

[1]    In a judgment dated 13 June 2023,1 I granted an application by the trustees of the IWC Trust for an order for the sale of the property at 41 Walker Road West, Aongatete (the property), under s 339 of the Property Law Act 2007 (the Act).

[2]The orders made were as follows:

(a)The property at 41 Walker Road West, Aongatete, is to be sold.

(b)The respondent is required to vacate the property by 1 October 2023 so the applicants can assess what work needs to be done before the property can be properly marketed and then to undertake that work;

(c)The sale expenses are to be paid from the sale proceeds before those proceeds are applied in the manner set out below:

(i)The net proceeds shall be applied as to 60 per cent to the applicants and the balance applied to the respondent’s mortgage before payment to her. If there has been any damage to the property caused by or during the respondent’s occupation of the property, the costs of those repairs shall be deducted from the respondent’s share of any sale proceeds.

(ii)Costs are to be on a 2B basis. Such costs are to be deducted from the respondent’s share of the net sale proceeds.

[3]    I observed that supplementary orders under s 343 of the Act may be required, including to address the following matters:

(a)the proposed method of sale of the property;

(b)the price and/or reserve proposed and details of the method by which that has been arrived at;

1      Jones v Tuhakaraina [2023] NZHC 1462.

(c)whether it is proposed that the Registrar of the Court should be authorised to execute documents on behalf of the respondent; and

(d)the quantification of any expenses of which the applicants seek reimbursement, such as work done on the property so that it can be properly marketed, supported by affidavit evidence as to the amount of compensation sought.

[4]The applicants now seek supplementary orders under s 343 of the Act:

(a)That the property at 41 Walker Road West, Aongatete be sold by deadline sale;

(b)Setting a reserve of $725,000 for the sale of the property;

(c)Authorising the Registrar of the Court to execute documents on behalf of the respondent;

(d)Requiring the rates and water rates which remain outstanding at the date of sale (current balance owing of $9,389.22) to be deduced from the respondent’s share of the sale proceeds.

[5]Costs are also sought in regard to this application.

Property Law Act

[6]    Under s 339 of the Act, the Court may, in respect of property owned by co- owners, make an order for the sale of the property and the division of the proceeds amongst the co-owners.2 Orders to that effect were made in the 13 June 2023 judgment.

2      Property Law Act 2007, s 339(1)(a).

[7]    In addition to making an order under s 339(1), a Court may make a further order specified in s 343.3 Section 343 of the Act sets out the further powers of the Court. It provides:

343 Further powers of court

A further order referred to in section 339(4) is an order that is made in addition to an order under section 339(1) and that does all or any of the following:

(a)requires the payment of compensation by 1 or more co- owners of the property to 1 or more other co-owners:

(b)fixes a reserve price on any sale of the property:

(c)directs how the expenses of any sale or division of the property are to be borne:

(d)directs how the proceeds of any sale of the property, and any interest on the purchase amount, are to be divided or applied:

(e)allows a co-owner, on a sale of the property, to make an offer for it, on any terms the court considers reasonable concerning—

(i)the non-payment of a deposit; or

(ii)the setting-off or accounting for all or part of the purchase price instead of paying it in cash:

(f)requires the payment by any person of a fair occupation rent for all or any part of the property:

(g)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 section 339(1).

Factual developments

[8]Since the judgment dated 13 June 2023, Mr Jones has:

(a)instructed Ian Rollerson of CBRE Limited to inspect the property and provide a written market valuation;

(b)engaged Melissa Kelly of Eves Real Estate to inspect the property and provide a property appraisal; and

3      Section 339(4).

(c)asked Steffen Hogh, a building and repair specialist, to visit the property and provide a quote for the work Ms Kelly suggested be completed before the property is listed for sale.

[9]    The respondent failed to comply with the Court order that she vacate the property by 1 October 2023. Mr Jones believes she is still in occupation and that she has no intention of leaving the property, or at least not soon.

[10]   In a valuation report dated 4 October 2023, Mr Rollerson is of the opinion that the market value of the property is $750,000.

[11]   In a property appraisal dated 15 October 2023, Ms Kelly gave a value assessment of between $740,00 - $800,000. She recommends a deep clean of the property, a full outside waterblast and fixing the hole in the ceiling of the sleepout, finding the leak and repainting the ceiling before going to the market. She also recommends a deadline sale.

[12]   Mr Hogh has given a quote of $27,590.80 to undertake the work recommended by Ms Kelly as well as repainting the exterior and interior of the house.

[13]   Although the respondent has signed a listing agreement for the sale of the property with Ms Kelly, Mr Jones says, based on her almost total lack of co-operation throughout the entire process, that he cannot be confident that the respondent will sign any further documents associated with the sale of the property.

Decision

[14]   The applicants’ memorandum seeking supplementary orders, an affidavit from Mr Jones as to factual matters and an application for costs were filed on 9 November 2023. The respondent was served by email at the same time. She has not filed any opposition within the required 10 working days. This is consistent with the respondent’s previous pattern of conduct whereby she failed to file responses, even when she had indicated that she intended to do so. That is why the applicants’ claim was eventually heard by way of formal proof.

[15]   I am satisfied that supplementary orders are necessary to facilitate the sale of the property because of the respondent’s lack of timely co-operation. Supplementary orders were envisaged as possibly required in my judgment of 13 June 2023.

[16]   There will accordingly be the following supplementary orders under s 393 of the Act:

(a)The property at 41 Walker Road West, Aongatete, is to be sold by deadline sale.

(b)A reserve of $725,000 is set for the sale of the property.

(c)The Registrar of the High Court is authorised to execute documents on behalf of the respondent.

(d)The rates and water rates which remain outstanding at the date of sale (current balance owing of $9,389.22) are to be deducted from the respondent’s share of the sale proceeds.

[17]   I approve the form of the draft orders of the Court attached to counsel’s memorandum dated 9 November 2023, which incorporates the earlier orders of the Court.

[18]The respondent is to pay the following costs:

(a)$3,730.69 for the application for leave to commence proceedings by originating application.

(b)$14,432.50 for the application for orders under ss 339 to 343 of the Act.

(c)$4,780.00 for application for supplementary orders.

Woolford J