Kumar v Patel

[2018] NZHC 1725

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV 2017-485-726

[2018] NZHC 1725

IN THE MATTER OF

s 339 of the Property Law Act

BETWEEN

KIRTI KUMAR

Applicant

AND

PRAKASH PATEL

Respondent

Hearing:	6 July 2018
Counsel:	G W D Manktelow for Applicant J C Gwilliam for Respondent
Judgment:	12 July 2017

JUDGMENT OF MALLON J
Table of contents
Introduction	[1]
Background	[2]
Occupation rent	[21]
The law	[21]
Submissions	[27]
My assessment	[31]
Costs	[45]
Result	[47]

KUMAR v PATEL [2018] NZHC 1725 [12 July 2017]

Introduction

[1]        Mr Kumar seeks costs and orders under s 343 of the Property Law Act 2007 following a sale order made under s 339. Mr Patel opposes these orders.

Background

[2]        Mr Kumar and Mr Patel owned a property in High Street, Lower Hutt as tenants in common in equal shares. They entered into a partnership agreement dated 26 March 2015 recording their investment in the property. As recorded in that agreement, Mr Kumar and Mr Patel agreed to use the property to operate their respective businesses. The ground level was to be used by Mr Kumar and the top level was to be used by Mr Patel. Although not part of the partnership agreement, Mr Patel’s marketing business used Mr Kumar’s accounting services.

[3]        Irreconcilable differences arose between them. From Mr Kumar’s perspective, this was because in June 2016 Mr Patel had ceased to use the top level for office purposes and was living there. This meant that Mr Patel was using the kitchen they shared at the entrance of the property to cook his meals. Mr Kumar considered this led to an unpleasant odour in his business premises. Mr Kumar was also concerned about sharing the power bill when Mr Patel’s use of the premises as his residence increased his power use. In the middle of 2017 Mr Patel unilaterally changed the power supplier and the power was cut off to Mr Kumar’s office on the ground floor. Mr Kumar investigated the costs of installing a separate meter in his office but concluded this to be prohibitive. Mr Kumar vacated the property. On 27 September 2016 he gave three months notice of dissolution of the partnership.

[4]        From Mr Patel’s perspective, he had moved into his floor of the building with Mr Kumar’s consent because of financial difficulties. He understood Mr Kumar did not want to stay in the property because he could not afford to the pay the rent and wanted to sell it. Mr Patel considered Mr Kumar had overcharged him for his accounting services and they were in dispute about this. Mr Patel changed the power supplier because Mr Kumar had stopped paying for the power. This was not a reason for Mr Kumar to vacate his floor of the property because the power switch board was on his floor. Mr Patel also says that he did not cook in the kitchen as he largely ate

takeaways. Mr Patel did not have full use of the property after Mr Kumar left because Mr Kumar retained a key to the ground floor and kept his part of the property locked. Mr Patel says he had to deal with Mr Kumar’s former clients who turned up to the abandoned premises.

[5]        It is accepted they each had stopped making the mortgage payments. They were also engaged in proceedings over Mr Kumar’s unpaid fees for his accounting services. On 22 May 2017 Mr Kumar’s solicitor wrote to Mr Patel about that dispute and also stated:

The property will need to be placed on the market for sale. The only question is which agent and the sale price. Which real estate agent do you wish to list the property with please?

[6]        Mr Patel did not reply to this letter. On 13 July 2017 the ANZ Bank, which held the mortgage over the property, gave notice of default and required that it be remedied on or before 24 August 2017.

[7]        On 5 September 2017 Mr Kumar filed an originating application seeking the following orders:

1.That the property at 871b High Street, Lower Hutt being all that land comprised and described in CT WN176/1285 be sold.

2.That the proceeds of sale after deduction of sale expenses and repayment of the mortgage be divided equally between the applicant and the respondent.

3.That the respondent pay the applicant’s costs and disbursements of and incidental to these proceedings.

4.Permission that these proceedings be commenced by originating applications.

[8]        The application first came before the High Court on 9 October 2017. The application was adjourned to enable Mr Patel to obtain a valuation of the property with a view to making an offer to buy Mr Kumar’s share of the property.

[9]        The application was back before the High Court on 24 October 2017. At that time, and by consent, an order for the sale of the property was made pursuant to s 339

of the Property Law Act.1 The order was to come into effect at noon on 31 October 2017 to allow the parties further time to negotiate a settlement. Costs were to be the subject of memoranda, if not agreed, to be filed within 10 days of the date of sale.

[10]      In between these two Court dates, Mr Patel contacted real estate agents to sell the property. The proposed listing agreements disclosed a number of defects with the property. He also obtained a valuation from a registered valuer. This assessed the value of the property at $380,000. On the basis of this valuation, Mr Patel made three offers. First, on 19 October, he offered $190,000 subject to the parties sharing the costs of itemised repairs to the property and to finance. Next, on 24 October, he offered $190,000 subject only to finance. Lastly, on 30 October, he offered $200,000 as a cash offer with settlement to occur in 10 working days. He also left it open to  Mr Kumar to make a counteroffer. Mr Kumar did not accept Mr Patel’s offers and made no counteroffer. This meant that the sale order was to take effect the next day.

[11]      There were problems between the parties in giving effect to the sale order. Mr Kumar wished to obtain a registered market valuation. He approached two valuers who declined to carry out the instructions. Mr Patel disputes that he was obstructive in this process. However a letter from one of valuers approached by Mr Kumar said they had been telephoned by Mr Patel who said he would sue them if the valuation was not the same as the one he already had. This valuer advised they were not prepared to carry out the work if they were going to be harassed and sued. A letter from the other valuer confirms that they declined the work for similar reasons.

[12]      On 16 November 2017 Mr Kumar obtained further orders from the High Court. They were as follows:2

Mr Hofmann-Body, partner Gillespie Young Watson, solicitors of Lower Hutt is authorised to carry out the sale. Specifically Mr Hofmann-Body is authorised to:

(i)list the property for sale with an appropriate real estate agent including executing any necessary sale authority on behalf of both parties.

(ii)accept any appropriate purchase offer made in his opinion.

1      Kumar v Patel HC Wellington CIV-2017-485-726, 24 October 2017 (Minute of Collins J).

2      Kumar v Patel HC Wellington CIV-2017-485-726, 16 November 2017 (Minute of Clark J) at [5].

(iii)sign any necessary Landonline New Zealand /LINZ forms on behalf of both parties: Kirti Kuman and Prakash Patel.

(iv)incur any necessary expenditure to effect a sale.

(v)pay his own and any other incidental costs out of the sale proceeds including the bank mortgage.

(vi)take all necessary steps to carry out the order of the High Court that the property be sold.

[13]      Mr Hofmann-Body was advised by real estate agents that it was not sensible to try and sell the property in December 2017 and it would be better to defer the sale until 2018. He reported to Mr Patel and Mr Manktelow (Mr Kumar’s lawyer) on a number of dates between February and April 2018. On 9 February 2018 Mr Hofmann- Body advised that a listing agreement had been signed with Mark Phillips (a real estate agent) and it was intended to list the property for auction on 24 March 2018. He also advised that, because it would be best if the property was marketed vacant, Mr Patel would need to vacate the premises by 25 February 2018. There would also be costs in staging the property with furniture to improve its appearance and in clearing the property.

[14]      Mr Patel did not wish to vacate the property although he was given further time to do so. He said he had tried to find somewhere to go but had not been able to find an alternative. He had tidied up his things on his floor and he was not convinced a better price would be gained if he vacated the property. He also did not consent to the arrangements Mr Kumar had made to pay for the staging costs. However Mr Phillips agreed that his company would bear the marketing costs until the property was sold.

[15]      Mr Patel also lodged a complaint with the Real Estate Authority. He claimed that property defects were not going to be disclosed to purchasers. This was not correct. As Mr Hofmann-Body explained in an email to the parties on 23 April 2018, he had provided Mr Patel’s list of defects to Mr Phillips and instructed him to market the property on an as is where is basis.

[16]      In April 2018 Mr Patel was also causing difficulties with Mr Phillips having access to the property to photograph it. As a result of these difficulties Mr Patel was advised on 23 April 2018 that Mr Phillips would be attending the property on Friday

26 April 2018 to photograph it and Court directions to evict Mr Patel would be considered if access was denied at that time.

[17]      On 26 April 2018 counsel for Mr Kumar filed a memorandum with the Court advising of the difficulties that Mr Patel was causing and seeking further orders from the Court. These orders included directing Mr Patel to vacate the property and to pay rental to Mr Kumar for his continued occupation at $300 per week from 24 October 2017 to the date he vacated the property, this sum to be paid out of his half share of the balance sale proceeds. Costs were also sought against Mr Patel. On 3 May 2018 the High Court issued a minute putting in place a timetable for the hearing of these matters.3

[18]The property was sold by auction on 24 May 2018. The purchase price was

$465,000. The purchaser was the owner of the adjoining premises. Settlement took place on 15 June 2018. Mr Hofmann-Body provided a report to the parties on the sale process. This responded to criticisms Mr Patel had made of Mr Hofmann-Body. One of those criticisms was the time taken to sell the property. Mr Hofmann-Body noted that Mr Patel’s complaint to the Real Estate Authority had been one of the reasons for this. Mr Hofmann-Body considered the sale price represented “excellent value” in the property’s current condition. He considered that this price would not have been achieved if the property had been sold earlier because the eventual purchaser had been overseas for a period.

[19]      On  the  subject  of  Mr  Patel’s  continued   occupation  of  the  premises,   Mr Hofmann-Body said:

I would have preferred to market the property vacant and staged but agreement was never reached on this point. I did not consider I had authority to remove Mr Patel from the property and even if I did have that authority I would not have taken that step. When I first visited the property, I considered the upstairs premises to be in a state that was not conducive to marketing of the property. I was very concerned that the premises looked and felt unclean. To Mr Patel’s credit, once the property was put on the market, he dramatically improved the appearance of his living areas and the property was well presented.

Provided that early warning was given to Mr Patel in every case, Mr Patel cooperated with the process of allowing purchasers and agents into the

3      Kumar v Patel HC Wellington CIV-2017-485-726, 3 May 2018 (Minute of Churchman J) at [9].

property for the purposes of open homes and inspections. I have no concerns regarding Mr Patel’s conduct in this regard.

…

It is correct that the property was sold for a reasonable price however, I stand by my view that the property would have been sold more easily and potentially for a better price if it had been vacant and staged.

[20]      Mr Hofmann-Body also said that additional cleaning costs were incurred on the weekend after settlement date. This was because the real estate agent advised the property was very unclean and not of a standard where it could be said that vacant possession had been given.

Occupation rent

The law

[21]      Section 339 of the Property Law Act provides that the Court may make an order for the sale of property owned by co-owners. When making a sale order the Court may make further orders of the kind specified in s 343. These including an order that “requires the payment by any person of a fair occupation rent for all or any part of the property”.4 Other orders include requiring one co-owner to provide compensation to another,5 directing how the expenses of sale are to be borne6 and directing how the proceeds of any sale are to be divided.7 When making any such order the Court must have regard to the considerations set out in s 342. These include “any other matters the court considers relevant”.8 As it was said in Bayly v Hicks, this confers a broad discretion on the Court.9

[22]      The starting point is that where real property is owned by two or more parties as tenants in common, they all have an equal entitlement to enjoy the whole of the property through physical occupation of the property or the receipt of a proportionate share of rents and profits resulting from its management.10 In this case, by their

4      Section 343(f).

5      Section 339(a).

6      Section 339(c).

7      Section 339(d).

8      Section 342(f).

9      Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [25] per Asher J for the Court.

10     J F Burrows (ed) Land Law (online looseleaf ed, Westlaw NZ) at [C06.01].

partnership agreement, the two co-owners agreed to vary this: Mr Patel was to occupy the top level and Mr Kumar was to occupy the ground level.

[23]      Against that starting point the general position is that a co-owner cannot, by failing to exercise their entitlement to occupy the property, claim compensation against a co-owner in occupation since they are merely exercising their lawful right.11 However, under its equitable jurisdiction, the Court could inquire into the position:12

… to see whether a tenant in common in occupation of the premises was doing so to the exclusion of one or more of the other tenants in common for whatever purpose and by whatever means. If this was found to be the case, then in order to do equity between the parties an occupation rent should be paid …

[24]      To similar effect is Re Pavlou (a bankrupt), which both parties in this case relied on, where Millett J (as he then was) said:13

First, a court of equity will order an inquiry and payment of rent, not only in the case of where the co-owner in occupation has ousted the other, but in any other case in which it is necessary in order to do equity between the parties that an occupation rent should be paid. The fact that there has not been an ouster, or forceful exclusion, therefore, is far from conclusive. Secondly, where it is a matrimonial home and the marriage has broken down, the party who leaves the property will, in most cases, be regarded as excluded from the family home, so that an occupation rent should be paid by the co-owner who remains. But, that is not a rule of law; that is merely a statement of the prima facie conclusion to be drawn from the facts. The true position is that if a tenant in common leaves the property voluntarily, but would be welcome back, and would be in a position to enjoy his or her right to occupy, it would normally not be fair or equitable to the remaining tenant in common to charge him or her with an occupation rent which he or she never expected to pay.

[25]      In Dyas v Elliott the High Court considered the principles from these cases remained of assistance to the discretion under s 343(f) of the Property Law Act:14

The court’s discretion under s 343(f) is wide and unfettered, but these cases assist in applying it. Under that section an absent co-owner may obtain occupation rent from the co-owner in possession. It is not every absent co- owner who can obtain occupation rent from the other. While it would be unwise to endeavour to set out parameters for the exercise of the discretion, where one co-owner chooses to stay in possession and this makes it not reasonably practicable for the other co-owner to continue to cohabit,

11     McCormick v McCormick [1921] NZLR 384 (SC) at 385 per Salmond J.

12     Dennis v McDonald [1981] 1 WLR 810 (Fam) at 816-817 per Purchas J, applied in Surridge v Quinn (HC Wellington, CP830/91, 13 May 1993) at 12-14 per Neazor J.

13     Re Pavlou (a bankrupt) [1993] 3 All ER 955 at 959 per Millett J.

14     Dyas v Elliott (2010) 11 NZCPR 252 at [18] per Asher J. This summary of the position was applied in another High Court decision: Whimp v Bingham [2016] NZHC 1261 at [21] per Ellis J.

occupation rent will usually be ordered. The position will be different where a co-owner leaves voluntarily, would be welcome back, and it is reasonably practicable for that co-owner to live there.

[26]      The principles discussed in these cases have arisen in the context of domestic relationship breakdowns. In such situations, as Millett J said, the prima facie position will be that one owner is in occupation to the exclusion of the other.

Submissions

[27]Mr Kumar submits he should have occupation rent from Mr Patel at the rate of

$450 a week from 24 October 2017 to 15 June 2018. The rate of rent is based on a TradeMe rental listing of a two bedroom property in the area for $460 per week, information from Tenancy Services showing weekly rentals for a two bedroom flat or house in the area of between $335 and $450 per week, and a TradeMe rental estimate for the property of $420 to $520 per week.

[28]      Mr Kumar submits occupation rent is appropriate because: the partnership agreement envisaged both parties using the premises for business purposes; Mr Patel’s use of the property for residential purposes changed the environment of the place and Mr Patel was at least indifferent if not actively hostile to Mr Kumar; Mr Patel also deprived him of power; and these circumstances meant it was unrealistic to expect Mr Kumar to continue to operate his business from these premises.

[29]      Mr Patel submits it is inappropriate for the Court to make findings on the disputed facts on affidavit evidence on an originating application. He submits their dispute should be resolved pursuant to the arbitration provision in the partnership agreement. He submits that, as there was no forceful exclusion, a detailed factual inquiry is necessary before occupation rent could be ordered.

[30]      Mr Patel also submits occupation rent is not appropriate because: Mr Kumar was the first to cease making mortgage payments; it was Mr Kumar’s decision to vacate the ground floor and this was not caused by Mr Patel’s actions; Mr Kumar retained the keys to the premises and to a garage and Mr Patel did not have access to Mr Kumar’s part of the building or the garage; and there is insufficient evidence of

what a fair market rent price would be given the condition of the premises (which had defects).

My assessment

[31]      In my view it is not appropriate at this stage to refer this matter to arbitration. The partnership agreement contained a provision that all disputes between them concerning the division of assets was to be referred to arbitration. That agreement survived the partnership termination.15 However the parties submitted to the jurisdiction of the Court when the consent order for the sale of the property was made.16

[32]      Similarly, it is too late for Mr Patel to object to this matter being brought as an originating application. An application for orders under ss 339 and 343 of the Property Law Act are not amongst the applications which must be brought by the originating application procedure.17 This means permission to bring the application by originating application was necessary.18 Mr Kumar sought that permission. This was initially opposed by Mr Patel but that opposition was effectively abandoned when the sale order was made by consent under s 339.

[33]      Although the originating application procedure may not be ideal when there are material disputed matters of fact, the rules nevertheless enable disputed facts to be determined under this procedure. A direction can be given for evidence to be taken orally.19 A party can by notice require a deponent of an affidavit to attend court for cross examination.20 Here neither party sought such a direction or served such a notice. I therefore proceed on the basis of the affidavit evidence but mindful that there are disputes of fact and neither party has been cross-examined on them.

15  Arbitration Act 1996, Art 16(1), First Schedule and see, for example,  Heli-Flight New Zealand   Ltd v Massey University (HC Auckland, CIV-2005-404-4855, 30 November 2005) at [12] per Harrison J.

16     Arbitration Act, Art 8, First Schedule.

17     High Court Rules, r 19.2(s).

18     High Court Rules, r 19.5.

19     High Court Rules, r 19.13.

20     High Court Rules, r 19.14 and 9.74.

[34]      Mr Kumar has brought the claim for occupation rent. He therefore has the burden of proof. On the basis of the affidavit evidence and in the absence of cross examination, I am not able to find that he was forcefully excluded from the premises as at 24 October 2017. I accept that Mr Patel was occupying the premises for residential purposes and this was contrary to the partnership agreement. However Mr Patel’s use of the shared kitchen and increased use of power ought to have been capable of discussion and resolution between them. Had it been, there does not seem to be any particular reason why use of the upstairs premises for residential purposes would detract from Mr Kumar’s business premises.

[35]      What made resolution impossible was the hostility that had arisen between them. As to that, the state of the evidence does not enable me to say that this was all Mr Patel’s fault. As with any conflict, it is more likely that both parties contributed to the hostility, even if one of the parties did so more than the other. I consider it is unlikely Mr Kumar vacated the premises because he could no longer afford them as Mr Patel suggested. Mr Kumar remained liable for the mortgage payments until the premises were sold. He could have negotiated a sale to Mr Patel or dissolved the partnership and sought a division of the assets pursuant to the arbitration agreement. There was no need for him to vacate the premises in the meantime to achieve this. In my view it was the conflict between Mr Kumar and Mr Patel that led to Mr Kumar’s departure.

[36]      I consider that the irreconcilable differences between Mr Patel and Mr Kumar are not directly analogous to a domestic relationship breakdown. In the latter the personal nature of the relationship will often make it impossible for the two partners to remain in the same residence. In a business relationship, the parties ought to act commercially even if they no longer have a good personal relationship. Moreover, the parties here had separation through their agreement to occupy separate levels of the property and they had a mechanism for resolving their disputes, namely through arbitration. Mr Kumar also retained control over the ground floor even though he was not occupying it.

[37]      For these reasons it is not appropriate to award occupation rent on the basis that Mr Patel’s actions have forced Mr Kumar from the property or excluded him from

occupying it. To some extent this is effectively accepted by Mr Kumar in that he does not seek occupation rent from when he vacated the premises in the middle of 2017.

[38]      However the Court’s discretion under s 343 is broad. As it was put by Millett J, occupation rent should be paid in any other case in which it is necessary in order to do equity between the parties. I consider that payment of some occupation rent is necessary in order to do equity between the parties. This is because, once Mr Hofmann-Body was ready to sell the property, he asked Mr Patel to vacate it on the basis of advice from the real estate agent that this would be best for the sale. Mr Patel’s evidence is that he was not able to do so. This was because he only needed short term accommodation (as he was intending to move to Australia) and he could not find such accommodation. Mr Patel therefore had the benefit of rent-free accommodation in circumstances where the property was being sold pursuant to a court order, and the court appointed facilitator of that sale wished to have vacant possession.

[39]      In my view it does not matter that Mr Patel believes his continued occupation did not affect the ultimate sale price. That is an unknown. What is known is that Mr Hofmann-Body considered at the time, and remains of the view, that the property would have been sold more easily and potentially for a better price if it had been vacant and staged. For that reason he had asked Mr Patel to vacate the property but Mr Patel did not do so.

[40]      The evidence does show that Mr Patel was initially disruptive of the sale process. It does not matter whether he was genuine in his concerns about selling the property with known defects or whether he remained hopeful of securing the property for a good price or what his motivations were. The evidence indicates that his actions caused the auction date to be postponed from 24 March 2018 to 24 May 2018. This delay meant that mortgage payments continued to accrue. On the other hand, the evidence also indicates that the ultimate purchaser may not have purchased the property if it had been auctioned on 24 March 2018. It is therefore unclear whether the delay caused the parties loss. The same is true of Mr Patel’s interference with Mr Kumar’s attempts to obtain valuations in November 2017 and his unilateral attempts to obtain a listing agreement with his view of the property defects recorded. It is not known if Mr Hofmann-Body would have secured a sale at as good a price if he had been able to hold an auction in November or December 2017.

[41]      I therefore consider Mr Patel’s disruptive activities do not provide any additional basis for the payment of occupation rent. Nor is it relevant to this issue that Mr Patel facilitated the purchase by the adjacent property holder. It is not known whether the adjacent property holder would have purchased the property and at the same price without Mr Patel’s assistance.

[42]      In these circumstances I consider Mr Patel should pay occupation rent from the date at which Mr Hofmann-Body asked him to vacate the property (25 February 2018) until the settlement date when Mr Patel vacated the property (15 June 2018). As to the amount of the rent, a review of the cases discussed above shows that once an appropriate rental for the property is set (which is not necessarily market rent)21 the person in occupation is typically required to pay half that amount to the co-owner. This reflects the position that the person in occupation owns the property and is entitled to occupy it. The payment is because the other person does not have the benefit of their equivalent right of occupation. In this case it is all the more appropriate that Mr Patel pay half the appropriate rental given he continued to occupy only half of the property during the 25 February 2018 to 15 June 2018 period.

[43]      As the property was intended to be used as a business premises I consider it is appropriate that occupation rent be based on a fair market rent and not some lesser basis. Mr Kumar had originally sought occupation rent of $300 per week. In submissions he increased this to $450 per week. I accept that Mr Kumar has put before the court an adequate selection of material which provides a reasonable basis for determining a rough estimate of market rent. The midpoint of these two figures is close to the median rent of $380 per week for a two bedroom flat from the Tenancy Services information. Taking that figure, Mr Patel’s half share is $190 per week. That figure is fair to both parties in my view.22

21     See, for example, Dennis v McDonald, above n 12.

22 The amount is less than what it appears Mr Kumar and Mr Patel paid by way of rent when they were operating a partnership.  Bank  statements  included  in  the  material  before  me  record Mr Kumar and Mr Patel as each making weekly payments of $250 per week for “rent”. Neither party, however, relied on this in relation to the occupation rent application. That rent may have reflected the then business nature of the premises. I consider it is more appropriate in these circumstances to set the occupation rent with reference to the fair market rental for residential premises.

[44]      In order to do equity between the parties, I therefore consider Mr Patel should pay to Mr Kumar a weekly occupation rent of $190 for the period from 25 February 2018 to 15 June 2018. This payment should be made from Mr Patel’s share of the sale proceeds which Mr Hofmann-Body holds, after his costs and any other incidental costs out of the sale proceeds including the bank mortgage have been paid. Additionally the cleaning costs incurred over the weekend after the settlement date should also be deducted from Mr Patel’s share of the sale proceeds. Mr Hofmann-Body may also adjust the respective shares of the sale proceeds if either party provides satisfactory proof to him, within a period of time that he specifies, that they have paid more of the mortgage payments than the other.

Costs

[45]      Mr Kumar seeks 2B costs for this proceeding. In my view that is appropriate. This is for the following reasons:

(a)The usual principle is that costs follow the event.23

(b)Mr Patel’s efforts to negotiate a sale are not a reason to displace that principle. It does not matter that, had Mr Kumar made a counter offer to Mr Patel’s cash offer of $200,000, it is likely the parties would have been in a similar position as that which they are now in (bearing in mind the additional mortgage payments that accrued during 2018 until the sale was effected). Mr Kumar was entitled to obtain a valuation against which to assess Mr Patel’s offers. The evidence is clear that Mr Patel interfered with Mr Kumar’s attempts to do so, even if Mr Patel believes he did not do so or did not intend to do so.

(c)Nor is the arbitration provision a reason to displace this principle. Mr Patel could have invoked the arbitration provision when Mr Kumar’s lawyer first gave notice on 22 May 2017 that the property would be sold. He did not do so. An arbitration would have involved costs for both parties in any event.

23     High Court Rules, r 14.2.

(d)Mr Patel opposed the order for occupation rent. He has been unsuccessful in that opposition.

(e)Mr Kumar’s solicitor has kept the costs of the proceedings to a minimum. He has utilised the originating application procedure and has only take the steps necessary to obtain the sale and some occupation rent. He has also managed to avoid additional filing fees by being able to come back to the Court for further orders via memoranda.

[46]The costs are to be paid out of Mr Patel’s share of the sale proceeds.

Result

[47]      Mr Patel is to pay Mr Kumar occupation rent and cleaning costs in accordance with [44] above. He is also to pay costs on a 2B basis in accordance with [46] above.

Mallon J