McKay Builders Limited (in liquidation) v McKay

[2019] NZHC 1503

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2015-409-000845

[2019] NZHC 1503

BETWEEN

MCKAY BUILDERS LIMITED (IN LIQUIDATION)

First Plaintiff

AND

VIVIEN JUDITH MADSEN-RIES and

HENRY DAVID LEVIN as liquidators of McKay Builders Limited (in liquidation) Second Plaintiffs

AND

PAUL JOHN MCKAY

First Defendant

AND

KIM YVONNE MCKAY

Second Defendant

Hearing:	On the papers
Appearances:	N H Malarao for the Plaintiffs A N Riches for the Defendants
Judgment:	28 June 2019

JUDGMENT OF NATION J

[1]        The entitled parties, on a without notice basis, seek the extension of charging orders over land. The order sought is consented to by the liable parties.

[2]        The grounds for the application have been carefully and fully set out in the application.

[3]        The entitled parties obtained judgment from the High Court at Christchurch on 2 June 2017 against the first and second liable parties for a total of $757,797.87.

MCKAY BUILDERS LTD v MCKAY [2019] NZHC 1503 [28 June 2019]

[4]        On 19 July 2017, two charging orders were sealed by the High Court over relevant titles. The titles were charged with payment of the amounts for which judgment had been obtained. Pursuant to r 17.52(1) High Court Rules, charging orders lapse after two years unless extended by the Court under r 17.51(2).

[5]        The parties entered into a settlement deed in June 2018 which provided for the liable parties to make a payment no later than 3 September 2018. Payment was to be made through the sale and/or refinancing of the properties.

[6]        The liable parties did not pay the settlement sum. They are attempting to realise funds and are in regular contact with the entitled parties. The entitled parties have not taken steps they are entitled to as a result of the breach of the settlement deed.

[7]        The entitled parties are willing to give the liable parties more time to adhere to the terms of settlement but wish to protect their interests by obtaining an extension of the charging orders.

[8]        In a letter to the liable parties’ solicitors of 31 May 2019, the solicitors for the entitled parties referred to the background to the present situation and explained they would be seeking an extension of the existing charging orders for a further period of two years. The solicitor for the liable parties responded on 5 June 2019 formally recording his clients’ consent to the liquidators proposed course of action, as set out in the letter.

[9]        The entitled parties consider that an extension of two years is appropriate but also confirm they will be removing the charging orders if an offer is made for the properties which is to their satisfaction.

[10]      In all these circumstances, I am satisfied that it is in the interests of justice for the charging orders to be extended for two years as sought and it is appropriate for an order to that effect to be made on a without notice basis.

[11]I accordingly make orders:

(a)        the charging order over 26 Sinclair Street, New Brighton, Christchurch more specifically described in Identifier 231621 Canterbury be extended to 19 July 2021; and

(b)       the charging order over 26a Sinclair Street, New Brighton, Christchurch more specifically described in Identifier 231620 Canterbury be extended to 19 July 2021.

Solicitors:

Meredith Connell, Auckland Saunders & Co., Christchurch.