Lo v Lo
[2022] NZCA 98
•30 March 2022 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA418/2020 [2022] NZCA 98 |
| BETWEEN | HO SHING LO |
| AND | HO CHEONG LO |
| Hearing: | 29 July 2021 (consent memorandum received 2 March 2022) |
Court: | Goddard, Thomas and Wylie JJ |
Counsel: | M D Lloyd for Appellant |
Judgment: | 30 March 2022 at 2.00 pm |
JUDGMENT NO 2 OF THE COURT
AOrder by consent modifying the terms of the buy-out orders made by this Court in Lo v Lo [2021] NZCA 693 in respect of the property owned by the parties to permit a buy-out notice to be given by the respondents to the appellant at any time prior to 1 July 2022.
BOrder by consent for sale of the property in the circumstances and on the terms set out in the Appendix to this judgment.
CThere is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
The appellant and the first respondent are the registered owners of a property in Flat Bush, Auckland. The appellant applied to the High Court for an order for sale of the property. That application was unsuccessful.[1] He appealed to this Court.
[1]Lo v Lo [2020] NZHC 1614.
On 16 December 2021 this Court delivered a judgment allowing the appeal.[2] The Court made an order permitting the respondents to buy out the appellant’s share in the property on the terms set out in that judgment (the buy-out orders). Leave was reserved to the parties to file submissions in relation to the terms of the orders to be made to govern the scenario where a buy-out does not proceed.
[2]Lo v Lo [2021] NZCA 693 [December 2021 judgment].
Counsel have filed a joint memorandum dated 1 March 2022 advising that the parties have reached agreement on the terms of orders to be made in respect of a possible buy-out by the respondents of the appellant’s share in the property, and in respect of a sale of the property if a buy-out does not proceed.
The December 2021 judgment directed that the respondents may, at any time prior to 1 April 2022, give a written notice to the appellant electing to purchase the appellant’s share in the Flat Bush property.[3] Leave was reserved to the parties to apply for directions in relation to any matters arising in connection with the implementation of these orders.[4] The parties have agreed to extend the date by which a buy-out notice may be given to 1 July 2022. We modify the buy-out orders accordingly.
[3]December 2021 judgment, above n 2, appendix at [A].
[4]December 2021 judgment, above n 2, appendix at [E].
In the event that a buy-out by the respondents of the appellant’s share of the property does not proceed, we make an order by consent for the sale of the property in the circumstances and on the terms set out in the Appendix to this judgment.
Solicitors:
Bruce Scott Muller Law, Auckland for Appellant
Duncan King Law, Auckland for Respondents
Appendix: Orders for sale of property
If a buy-out by the respondents of the appellant’s share of the property does not proceed in accordance with the buy-out orders made in the December 2021 judgment, as modified by this judgment, the property shall be sold in accordance with the following terms agreed by the parties:
(a)The parties are, as soon as reasonably possible, to obtain an up to date, independent, valuation of the Property (“the Independent Valuation”) and pay a third each of the costs of obtaining such a valuation.
(b)After obtaining the Independent Valuation, the parties are to jointly appoint Ms Melanie Broodryk, of Barfoot and Thompson, Dannemora Branch (“Ms Broodryk”), as the real estate agent to act on the sale of the Property.
(c)If Ms Broodryk is, for any reason, unwilling or unable to act on the sale, then the parties are to jointly appoint another appropriately qualified real estate agent to act on the sale.
(d)The Property must be sold by public auction within three months of the real estate agent’s appointment. The parties are to pay a third each of any reasonable costs of sale incurred prior to auction.
(e)The real estate agent appointed and any agents assisting her/him will be entitled to have access to the Property for the purposes of showing prospective purchasers through it during ordinary business hours, 9.00 am to 5.00 pm Monday to Friday and on Saturdays from 9.00 am to 12.00 noon.
(f)The respondents, or anyone associated with them, are not to hinder access to the property by the real estate agent(s) or anyone assisting them, and are to keep the Property in a clean and tidy condition for viewing by prospective purchasers.
(g)The parties are to jointly appoint Mr Ian MacDonald of Bruce Scott Muller Law, Solicitors, Ellerslie, in respect of the sale and transfer of the Property and in respect to the division of the sale proceeds in accordance with the orders below.
(h)A reserve shall be set for the Property at auction of 10% below the value of the Property as set out in the Independent Valuation.
In the event that the reserve price is not met at auction the parties are to negotiate, in good faith, with the highest bidder, with the intention of effecting a sale of the Property for the best realisable price.
(j)The parties are to co-operate with all aspects of the sale process including (without limitation) signing, as soon as possible, all such documents as are necessary to appoint a valuer, real estate agent and lawyer and otherwise effect a sale and transfer of the Property in accordance with the above.
(k)Failing such co-operation, the Registrar of the High Court at Auckland shall be authorised to sign any documents required to effect a sale of the Property in accordance with the above orders and to transfer the Property to the new owner following sale.
(l)After sale of the Property, the proceeds of sale must be applied as follows:
(i)to repayment of the mortgage on the Property;
(ii)to payment of all outstanding rates and other outgoings on the Property;
(iii)to payment of the reasonable costs of sale such as real estate agent’s commission, legal fees and the like; and
(iv)the balance remaining after payment of the costs referred to above is to be divided evenly, that is as to one third each, between the parties.
(m)Provided that if the parties mutually agree, in writing, to vary or depart from the process for sale, as set out above, they are entitled to do so without having to revert to this Court for amendment of the above orders.
(n)Leave is reserved to the parties to apply to this Court for a variation of these orders to the extent necessary to give practical effect to them.