Mackie v Stevens

[2012] NZHC 978

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-006367 [2012] NZHC 978

IN THE MATTER OF     An application under ss 339-343 of the

Property Law Act 2007

BETWEEN  MAUREEN ALICE MACKIE Plaintiff

ANDTUI CHRISTINA STEVENS Defendant

Hearing:         On the papers

Judgment:      10 May 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 10 May 2012 at 9:30 am

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

Solicitors:           John Sellers, P O Box 87159, Meadowbank Auckland 1742

Fax: [phone] – Email: [email protected]

Counsel:             R Fenton, P O Box 5444 Wellesley Street, Auckland 1141

Fax: [phone] – Email: [email protected]

G Cairns, Public Trust, P O Box 5067, Wellington
Fax: [phone] – Email: [email protected]

Copy to:             T Stevens, 21 Tabitha Crescent, Henderson, Auckland 0612

MACKIE V STEVENS HC AK CIV-2011-404-006367 [10 May 2012]

[1]      This proceeding concerns an application under s 339 of the Propery Law Act

2007 for an order for sale of jointly owned property.  The land comprises a block of farmland in Hikurangi, Northland.  The land was originally owned by three brothers in approximate one-third shares.  The plaintiff inherited one of those shares through marriage, her late husband being the son of one of the original owners and the

nephew of the two others.  She inherited a further 280/1000th share from one of her

husband’s uncles.  As a result, the plaintiff holds 614/1000th  share of the property. The balance is owned by the defendant (26.5/1000th) share, the Public Trust (333/1000th) share and Kipa Mackie (26.5/1000th) share.

[2]      The plaintiff, through her solicitor, wrote to the other owners in September and October 2010 seeking their agreement to sell the property.  The property had, until then, been grazed by a third party who was meeting the rates but after that arrangement came to an end she considered that the best course was to sell the property.  There was almost immediate agreement from the Public Trust.  However, securing agreement from the defendant and  Kipa Mackie proved more difficult. Although initially engaging solicitors the defendant withdrew those instructions in November 2010, apparently for financial reasons.   It appears that there was some direct communication between the plaintiff’s solicitor and the defendant in which the defendant indicated her agreement to a sale but failed to confirm that in writing.  By December  2010  Mr  Sellers  wrote  to  the  defendant  accusing  her  of  deliberately stalling the sale.  In early 2011 the defendant’s daughter began corresponding on her mother’s behalf.   She indicated that her mother did not, in fact, wish to sell for sentimental reasons (the farm having been in the family for some four generations) and proposed a partition of the land.  Through February and March 2011 there were communications between Mr Sellers and the defendant’s daughter about the possibility of the defendant’s daughter or another relative purchasing the plaintiff’s share.   Ultimately, that correspondence did not result in any agreement and on 13

April  Mr Sellers wrote  expressing dissatisfaction  with  the lack  of progress  and commenting that:

Although I asked you in my message of 31 March for “some reassurance that you are not deliberately stalling this matter”.  Your message of 1 April only

reinforces my client’s opinion that you, your mother and your uncles are

being devious.

I do not mind whether proceedings for an order for sale are commenced against your mother and her brothers; or against Saul Mackie, if he really wants to purchase the interest off your mother and her brothers in this land and finds himself dealing with the court proceedings.

[3]      Initial  efforts  to  locate  Kipa  Mackie  were  unsuccessful  and  eventually (through details provided by the defendant) he was located and provided written confirmation of his agreement to the sale on 8 December 2010.

[4]      There is no indication in the papers as to what steps or communications occurred between Mr Sellers’ email in April 2011 and the filing of the proceedings in September 2011.

[5]      When the matter was called on 27 February 2012 the defendant appeared in person.   She indicated her consent to the sale order being made.   However, the plaintiff also sought solicitor/client costs with an order that they be deducted from her share of the proceeds of sale.  The defendant resisted that order.  The question of costs was reserved and the parties invited to make submissions in writing.

[6]      The  plaintiff’s  counsel  has  filed  a  memorandum  attaching  copies  of  his invoices and that of Mr Sellers (in total they exceed $35,000).  The plaintiff seeks indemnity costs on the basis that the defendant acted unnecessarily in defending the proceedings.

[7]      The defendant has also written explaining her position.  She has given quite some detail about the background to this land and the reasons for her resistance to the sale.  It is evident the defendant has a genuine attachment to the land and that there is a deep-seated and genuine belief on her part that it would be wrong to sell it. The  defendant  also  points  out  that  she  assisted  in  locating  Kipa  Mackie  and providing the contact details for him.  She also asserts that she had made genuine efforts to find a way for other members of the family to purchase the land without any  real  effort  by  the  plaintiff  to  advance  that  course.    Finally,  the  defendant maintains that she has met the rates demands on this property following the termination of the lease arrangement.  This is a matter which was raised in previous

correspondence between Mr Sellers and the defendant’s daughter.  It was not referred

to in Mr Fenton’s memorandum and does not seem to be contested.

[8]      The Public Trust has also filed a memorandum.   The beneficiaries of the estate  it  administers  do  not  agree  to  meeting  costs  incurred  by  the  plaintiff’s solicitors.   The Public Trust has submitted that the defendant should pay its costs which it calculates on a 2B basis as $376.00.

[9]      I do not consider that this is an appropriate case for indemnity costs.  I accept the defendant’s explanation as to how matters have progressed and the reasons for it. Nor, given that the defendant has taken responsibility for rates demands and that there appears to be no proposal to reimburse her for that, do I consider this to be a case on which I should order costs against her at scale. The applications for costs are

refused.

P Courtney J