Laferla v Masei HC Auckland CIV-2010-404-2253

[2011] NZHC 246

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-2253

BETWEEN  JOSEPHINE LAFERLA Plaintiff

ANDIOANE MASEI Defendant

Hearing:         24 March 2011

Counsel:         P Stevenson for the Plaintiff

No appearance by or on behalf of the Defendant

Judgment:      24 March 2011

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Ms P Stevenson, Barrister, Auckland

Sellar Bone & Parters, Solicitors, Auckland

LAFERLA V MASEI HC AK CIV-2010-404-2253 24 March 2011

[1]      The plaintiff seeks judgment by default against the defendant.  I will come to the substance of the claim in a moment, after dealing with procedural matters.

[2]      The defendant lives in Australia (as does the plaintiff).  The proceeding was commenced  in New Zealand because it relates  to land in  New  Zealand.   I am satisfied that all necessary procedural requirements in relation to service on the defendant overseas, and in respect of an application for judgment by default against a defendant overseas, have been met.  In particular, I am satisfied that the provisions of r 15.3 to 15.14 of the High Court Rules, so far as applicable, have been met.

[3]      Although it is implicit in what I have already said, I also record that there is proof of service of the proceeding on the defendant and proof of subsequent service on  the  defendant  of this  present  application  to  seek  judgment  by default.   The plaintiff, through her solicitors, has followed all necessary procedural steps meticulously.

[4]      The substantive claim is to a property in Auckland and to rent paid for the property by  tenants.    From  the  evidence  provided  I  am  fully  satisfied  that  the plaintiff is entitled to have title to this property vested in her.  The evidence satisfies me that all of the money for the purchase of the property was the plaintiff’s money. Having regard to the related evidence, that is sufficient to justify vesting title in the plaintiff.   In addition, however, the defendant has signed an authority authorising transfer of title out of his name into the name of the plaintiff.  For statutory reasons it is not possible to use this authority to transfer title.  I note that the authority signed by the defendant has been certified, as a document signed by this defendant, by a police constable in Australia and who provided the certificate by reference to the defendant’s New Zealand passport.

[5]      I am also satisfied that the defendant is bound to account to the plaintiff for all rents received for the property subject only to deduction of any reasonable and proper expenses that may have been met over the relevant period.

Orders

[6]      There is a declaration that Josephine Laferla of Australia is entitled to be registered as proprietor of the estate contained and described in Certificate of Title NZ82B/219 (North Auckland).

[7]      There is an order vesting in Josephine Laferla of Australia, mother, title to the estates contained and described in Certificate of Title NZ82B/219 (North Auckland) being an estate in fee simple as to a one-third share in Lot 1 Deposited Plan 138898 and an estate in leasehold in Flat 3 Deposited Plan 138898 and Carport 4 Deposited Plan 138898.

[8]      There is a declaration that the plaintiff is entitled to all rental income for the property at 3/207 Bucklands Road, Mangere East, Auckland paid to the defendant since 29 October 2004, less any reasonable expenses for the property proved to have been met by the defendant from the rents.

[9]      The  defendant  shall  account  to  the  plaintiff  for  all  such  rent  less  such expenses.

[10]     The plaintiff has leave to apply for any consequential orders that may be required in respect of vesting of title, rents, or incidental thereto.

[11]     The plaintiff is entitled to costs on a 2B basis together with all reasonable disbursements.

Peter Woodhouse J