King v Dixon
[2016] NZHC 2584
•28 October 2016
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CIV-2016-425-000111 [2016] NZHC 2584
BETWEEN BRIAN STANLEY KING
Applicant
AND
LEANNE MARIE DIXON Respondent
Hearing: On the papers Counsel:
G L Wilkin for the Applicant
Judgment:
28 October 2016
JUDGMENT OF NATION J
[1] Mr King has applied ex parte for an order charging the respondent’s interest in a property at 91 Howden Street, Te Anau with payment of $21,000 on an interim basis and until further order of the Court.
[2] The application has been made on an ex parte basis because of information referred to in Mr King’s affidavit that the property is the subject of an agreement for its sale, with settlement to take place on 31 October 2016.
[3] Mr King has provided evidence by way of affidavit that he lent Ms Dixon a total of $21,000, paid to her in instalments between 22 April 2015 and 24 June 2016. He says the payments were made pursuant to an oral agreement that the monies would be repaid to him on the sale of the property.
[4] Mr King says he learnt the property was on the market in August 2016. He has said that he has made repeated attempts since that month to obtain confirmation
from Ms Dixon that she would repay the loan but there has been no response. There
KING v DIXON [2016] NZHC 2584 [28 October 2016]
was also no response to a letter to a similar affect sent to Ms Dixon by Mr King’s
solicitor and dated 16 September 2016.
[5] The High Court Rule 17.40 permits this Court to make a charging order on Ms Dixon’s interest in the property being sold, charging her interest in the property with payment of the amount for which Mr King may obtain judgment.
[6] Pursuant to r 17.41, the Court must be satisfied Ms Dixon is disposing of the property with intent to act illegitimately and with intent to defeat Mr King’s interest and entitlement to repayment of the loan. A high standard of proof is required.1 That
proof can be established by way of inference from available evidence.2
[7] The evidence does establish a strong prima facie case that Mr King is entitled to repayment to him of $21,000 from the proceeds of sale of Ms Dixon’s property. Her failure to respond to communications from both him and his solicitor do indicate that she is intending to sell the property without meeting what appear to be her obligations with regard to repayment of the loans which he has made to her.
[8] I am thus satisfied this is an appropriate case for a charging order to be made. An order is accordingly made in terms of the draft order filed by the applicant’s solicitors.
[9] Leave is reserved to the respondent to seek the variation or discharge of this order on three days’ notice.
Solicitors:
AWS Legal, Invercargill
1 Joseph Lynch Land Co v Lynch (1992) 6 PRNZ 37 at 44.
2 Re Cox, ex parte Coughlan [2015] NZHC 1014.
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