McLeary v Prasad - [2012] NZHC 2151

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-3263 [2012] NZHC 2151

BETWEEN MORRIS WAYNE MCLEARY AND SUZANNE CHRISTINE MCLEARY Plaintiffs

AND BHASHKAR PRASAD First Defendant

AND EVANJALINE SARITA PRASAD Second Defendant

Hearing: 21 August 2012

Counsel: J D Noble for Plaintiffs
No appearance for Defendants

Judgment: 21 August 2012

Reasons: 24 August 2012

REASONS FOR JUDGMENT OF ASSOCIATE JUDGE BELL

The reasons for judgment were delivered by me on 24 August 2012 at 11:30am
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar

Solicitors:
Boyle Mathieson (J D Noble) P O Box 21-640 Henderson, Auckland 0650
Email: jnoble@bmlaw.co.nz

Copy for:
B Prasad and E S Prasad, 2 Figtree Terrace, Goodwood Heights, Manukau 2105

MCLEARY V PRASAD HC AK CIV-2012-404-3263 [21 August 2012]

[1] The plaintiffs apply for summary judgment. When the case was called, there was no appearance for the defendants. I said that I would give summary judgment and would give my reasons later. I now give them.

[2] The plaintiffs’ substantive proceeding seeks orders under sub-part 5, Part 6 of the Property Law Act 2007. The defendants, a married couple, own a property at
2 Figtree Terrace, Goodwood Heights, Auckland. The plaintiffs are judgment creditors of Mr Prasad, the first defendant. They have a judgment for $62,163.10 given in the District Court at Manukau on 28 July 2010. On 20 September 2010 they registered a charging order for that judgment against the title to 2 Figtree Terrace.

[3] Mr Prasad’s liability under the judgment to the plaintiffs arose under a guarantee. His company, BP Automotive Ltd, leased the plaintiffs’ commercial property at 37 Church Street, Onehunga. Mr Prasad guaranteed the company’s obligations. The company defaulted under the lease.

[4] Mr Prasad filed an unsigned and unsworn document, but the defendants have taken no other steps to oppose the summary judgment application or the substantive proceeding.

[5] Section 339 of the Property Law Act 2007 allows the court to make an order for division of property by ordering a sale of the property and a division of the proceeds, or for division of the property in kind, or by requiring one or more co - owners to buy out the share of the others at a fair and reasonable price. The court may make further orders under s 343.

[6] The plaintiffs have standing to apply, because they have a charging order over the property – s 341(1)(c). Under s 341(2), the application must be served on any co-owner of the property. That has been done.

[7] The mortgagee, the Bank of New Zealand, has not been served. However, the orders proposed are not likely to adversely affect the interests of the Bank of New Zealand. Under s 341(3), I make an order dispensing with service on the Bank of New Zealand.

[8] Sub-part 5 of Part 6 of the Property Law Act 2007 has replaced the old partition provisions of the Property Law Act 1952 – ss 140 to 143. Case law…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McLeary v Prasad

Details

AGLC: McLeary v Prasad [2012] NZHC 2151
Case: [2012] NZHC 2151
Decision Date: 21 August 2012

CaseChat Overview and Summary

The plaintiffs, Morris Wayne McLeary and Suzanne Christine McLeary, applied for summary judgment against the defendants, Bhaskar Prasad and Evanjaline Sarita Prasad, to enforce a charging order against the defendants' jointly owned property at 2 Figtree Terrace, Goodwood Heights, Manukau. The plaintiffs are judgment creditors of Mr Prasad, who has a half share in the property, and they seek to realise his interest to satisfy their judgment debt of $62,163.10. The defendants did not appear to oppose the application. The primary legal issue for the court was whether the plaintiffs were entitled to summary judgment for the sale of the property, given the various considerations under section 342 of the Property Law Act 2007. The court considered the extent of the plaintiffs' interest in the property, the nature and location of the property, the number of other co-owners and the extent of their shares, the relative hardship that would be caused by the refusal or making of the order, and any other relevant matters. The court found that the plaintiffs had established that the defendants had no defence to the application and that the sale of the property was the most appropriate course of action to satisfy the judgment debt. The court made an order for the sale of the property, with some modifications to the draft order proposed by the plaintiffs.

The court granted the plaintiffs' application for summary judgment and ordered the sale of the jointly owned property at 2 Figtree Terrace, Goodwood Heights, Manukau. The order required the property to be sold by an auctioneer on 28 September 2012, with the proceeds to be divided between the plaintiffs and Mrs Prasad according to their respective shares in the property. The plaintiffs were also granted costs on a category 2B basis for the summary judgment application, and scale costs were to apply for further steps in the proceeding after 21 August 2012, with the exception of conveyancing costs, which could be charged at solicitor/client rates. The mortgagee, the Bank of New Zealand, was not required to be served with the order as it was unlikely to be adversely affected by the proposed orders.

Orders