Matchitt v Executors of the Estate of Te Momo

[2013] NZHC 96

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV2012-416-000183 [2013] NZHC 96

BETWEEN  STANLEY AND CHERIE MATCHITT Plaintiffs

ANDTHE EXECUTORS OF THE ESTATE OF RAHARUHI TE MOMO

Defendants

Hearing:         7 February 2013

Appearances: A Bendall for plaintiffs

B Tupara for defendants (together with defendant, J Te Momo) Judgment:    7 February 2013

(ORAL) JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

A J Bendall, Burnard Bull & Co, PO Box 946, Gisborne

B Tupara, Kahurangi Law, 11B De Lautour Road, Turanga (Gisborne) 4010

STANLEY AND CHERIE MATCHITT V THE EXECUTORS OF THE ESTATE OF RAHARUHI TE MOMO HC GIS CIV 2012-416-000183 [7 February 2013]

[1]      This is the second call of this application in which the plaintiffs seek leave to obtain an order for sale of a property at 2 Baty Street, Gisborne.  Leave is required, notwithstanding that the plaintiffs have a judgment and charging orders over that land, because the defendant to the default judgment Raharuhi Te Momo has since died, and leave is required pursuant to r 17.9(2)(c) or (d) of the High Court Rules.

[2]      The application was served on two of the three executors (John and Hamiora Te Momo, sons of the deceased) on 16 October 2012.   A third executor, Mychal Gemmell, grandson of the deceased, was not served at the time of the first call.  The application was adjourned to today’s date to allow time for service.  He has since been served pursuant to an order for substituted service.   That service was on 29

November 2012.

[3]      The sons, John and Hamiora Te Momo have filed notice of opposition to the application, together with a supporting affidavit by John Te Momo.  In essence they say that the executors were unaware of the underlying judgment, or the basis for at least the second of two charging orders (there was a first charging order registered for a sum  in  the order  of just  less  than $10,000,  but  a further order has  been registered in the amount of approximately $20,000 for a separate debt).  The total that the plaintiffs are seeking is now in the order of approximately $40,000 when costs are included.

[4]      The executors’ opposition is simply been on the basis that they consider the estate should not be liable.  However, they have given no specific reasons for this position, nor any evidential basis for it. They simply say that they were not informed and they would have expected some prior discussion on the matter.

[5]      The third executor, Mychal Gemmell, has taken no steps.  Mr Tupara informs me that there is an issue over his continuing role as an executor.  That is not a matter for this Court but it may explain his lack of interest in this proceeding.

[6]      Whilst I can understand the thinking of the two executors who are opposing that they need to have some understanding of the background to this matter, and particularly the reasons for the debts, I do not see that as a reason for declining to deal with this matter today.  I am informed by Ms Bendall (without any opposition from Mr Tupara) that the underlying judgment was obtained by default on 16 July

2010.  Mr Tupara confirms that Raharuhi Te Momo died in December 2011.  I can infer that she was aware of the judgment, and did not see it appropriate to take any steps either to resist it initially or to challenge it having been entered on a default basis.  Similarly, I see no basis for challenging the charging orders.  I see the failure to meet this debt as providing a proper jurisdictional and evidential basis for the order for sale now being sought.

[7]      However, I hear the executors’ concern to be able to explain the position to the whanau, presumably who would have an interest in the estate and therefore the property at 2 Baty Street.   I note Mr Tupara’s advice that the property is heavily encumbered with a mortgage and also a legal aid charge.  I consider it appropriate for the plaintiffs to be able to proceed and to recover what they can from any equity in the property.  However, in recognition of the concerns of the executors I propose making an order for leave but directing that it not be sealed for a short period to allow the executors time to explain the position to the whanau.

[8]      I  make  an  order,  accordingly,  granting  leave  to  the  plaintiffs  to  issue enforcement process in the form of a sale order in respect of 2 Baty Street, Gisborne, Lot 2DP4465, and the land in title GS2B/554.

[9]      This order is not to be sealed until 14 February 2013.

[10]     The plaintiffs seek costs on a scale 2B basis.  That seems appropriate in my view, but Mr Tupara seeks an opportunity to make submissions.  Without pressing him as to the background to that today, I cannot see that the plaintiffs will be unduly prejudiced by allowing time for submissions.  I direct that the two executors, J and H Te Momo, file and serve any memorandum in opposition to the plaintiffs’ application for scale 2B costs by 14 February 2013, and that the plaintiffs file and serve any

memorandum in reply by 21 February 2013.  Unless there is any reason for the Court to seek further submissions from counsel (in which case a telephone conference will

be convened), costs will be determined on the memoranda filed.

Associate Judge Abbott