Mead v Mead HC Auckland CIV 2007-404-004710

[2008] NZHC 2557

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-004710

UNDER  Property Law Act 1952

IN THE MATTER OF     of an application for partition

BETWEEN  ROBERT WILFRED MEAD Plaintiff

ANDROSEMARY JULIE MEAD Defendant

Appearances: P N Teei for Plaintiff

S Jefferson appointed to assist the Court
No appearance of Defendant

Judgment:      4 September 2008 at 3 pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON

This judgment was delivered by me on 4 September 2008 at 3 pm, Pursuant to Rule 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date……

Solicitors:           Joyce Spence Teei, PO Box 210247, Henderson

ROBERT WILFRED MEAD V ROSEMARY JULIE MEAD HC AK CIV 2007-404-004710  4 September 2008

[1]      The plaintiff and the defendant are the children of the late Joyce Mead who died on 8 November 1999. Pursuant to the Will of the late Joyce Mead, the plaintiff and defendant are the executors of her Estate which is divided equally between them.

[2]      Included in the assets they inherited from their mother is a property at 126

Konini Road, Titirangi. That property in terms of their late mother’s Will is vested in the plaintiff and the defendant in equal shares.

[3]      The plaintiff brought these proceedings for an order for partition and sale of the property at 126 Konini Road, Titirangi pursuant to section 140 Property Law Act

1952. The defendant did not oppose the application for an order for partition and sale. Consequently, on 28 November 2007 an order was made directing the sale of the property with consequential directions as to the way in which the property was sold, and as to the application of the proceeds with the requirement that the net available following payment of costs of an incidental to the sale and any monies due under any mortgage or encumbrance should be divided equally between the plaintiff and the defendant.

[4]      The  defendant  was  residing  in  the  property  when  these  proceedings commenced.  She  had  lived  in  the  property  since  the  death  of  her  mother  in November 1999.

[5]      The defendant refused to vacate the property to enable the property to be sold. As a result, the plaintiff applied for and obtained an order for possession of the property. Following the making of that order on 1 May 2008 a writ of possession was issued on 6 May 2008.

[6]      The writ of possession was enforced when the defendant was removed from the property with the assistance of a court bailiff and two police officers on 14 May

2008. On her removal from the property, the plaintiff arranged for the defendant to reside in a motel. When the matter came on for hearing before me on 3 July 2008 for the making of further directions to arrange a sale of the property, evidence was produced to the effect that the defendant had been receiving treatment from Waitemata Mental Health Services. Although in a letter from Waitemata Mental

Health Services there was evidence that as at 29 December 2007, there appeared to be no acute mental health concerns, I was concerned that the defendant could be a person requiring a litigation guardian because she was incapacitated in terms of rule

82 High Court rules. Consequently, I directed that counsel be appointed to assist the court in determining whether a litigation guardian should be appointed.

[7]      Pursuant to that direction, Mr Simon Jefferson was appointed as counsel to assist the Court. The Court is grateful for the assistance provided by Mr Jefferson.

[8]      Mr Jefferson in his report to the Court of 16 July 2008 advised as follows:

a)       He met with the defendant on two occasions at the Sunset Lodge Motel. She advised Mr Jefferson that she had been residing in that motel since June 2008. On the occasion of his second visit, the defendant was in the process of vacating the motel. She advised Mr Jefferson she would be staying with a friend.

b)The defendant is in receipt of an invalid’s benefit. She informed Mr Jefferson she had been receiving that benefit since 1980 and had been unemployed from that time.

c)       On his first visit, Mr Jefferson found that the defendant was articulate and ordered in her thinking. On his second visit, he found her to be distracted, tearful but polite and again apparently ordered in her thinking.

d)The  defendant  informed  Mr  Jefferson  that  her  primary  medical diagnosis is one of ME colloquially Tapanui flu, although she acknowledged that several years ago she had received treatment for a mental health disorder.

e)       The defendant was able to give Mr Jefferson a clear, concise and so far as he can ascertain, accurate life history from her upbringing in the mid- 1950s until her move to Titirangi.

f)        The defendant was aware that she had been compelled to leave the Konini Road property. She considered the Konini Road property was in poor condition and in need of considerable rehabilitative work before it could be sold. However, she had no indication as to how that work could be completed.

[9]      Following those meetings, Mr Jefferson was satisfied that the defendant was not incapacitated in terms of rule 82 High Court rules. Consequently, Mr Jefferson did not support an application for an appointment of litigation guardian to represent the defendant.

[10]     Pursuant to the order for sale made on 28 November 2007, in the absence of an agreement between the plaintiff and the defendant, as to the manner of sale of the property, the registrar was appointed to conduct the sale and given full authority to act. There was no agreement between the parties as to the manner in which the property was to be sold. Consequently, the registrar pursuant to the directions made on 28 November 2007, obtained a valuation in anticipation of arranging for a sale by public auction. That valuation prepared by Sheldons registered valuers and property consultants disclosed a current market value of $370,000 as at 15 July 2008. The valuer commented that overall the exterior of the property is in poor condition with repainting having fallen due to most surfaces. The interior was found to be in poor condition with redecoration, replacement of amenities and floor coverings required. The grounds also required maintenance.

[11]     The valuer commented on the decline in the national median house sale price that had occurred over the last few months together with a significant reduction in sales volume. There was also comment on the lengthening of the number of days required to sell a property.

[12]     The valuer in summary states:

With regard to the subject, the dwelling requires extensive renovation and refurbishment works both exterior and interior and there is no formed driveway. The land is contained in two separate lots although only one title. We  note  from  local  authority  aerial  photographs  the  dwelling  crosses common lot boundaries. Owing to the bush cover, the presence of stream –

watercourse and the position of the dwelling re-subdivision by way of boundary adjustment may prove difficult and we have considered this potential to have little added value.

On balance we are of the opinion a fair value for the subject property in its existing condition would lie around $360,000 to $380,000 price level as is set out in our valuation.

[13]     The valuation is made up as follows;

a)       Land value $275,000

b)        Value of improvements $95,000 c)      Current market value $370,000

[14]     The valuer also comments that in a forced sale the valuer would not be surprised to see the property selling as low as $315,000.

[15]     The plaintiff has indicated a wish to acquire the property. In the current market conditions, there are considerable advantages in negotiating a sale to the plaintiff. Included in those advantages is the ability to obtain a fixed price, and the avoidance of real estate agents commissions and costs of sale which would include costs of advertising the property should the sale proceed by auction. There is also the risk that the property could not achieve its current  market  value  at  an  auction, particularly having regard to its current dilapidated condition.

[16]     Mr  Jefferson  as  counsel  appointed  to  assist  the  Court,  has  obtained  a valuation from C B Richard Ellis. That valuation estimates that the property is worth

$355,000. The plaintiff has now agreed to purchase the property for $362,500 being the  mid-way  point  between  the  valuation  received  from  C  B  Richard  Ellis  of

$355,000 and the valuation from Sheldons of $370,000. Mr Jefferson offers no opposition to the plaintiff’s offer to purchase the property for the sum of $362,500. When I have regard to the comment by the valuer that in a forced sale, the valuer would not be surprised to see the property selling for as low as $315,000 and having regard to the costs which would be incurred in marketing the property with a view to selling the property by auction, together with the costs of the auction, I am satisfied

that it is appropriate to permit the plaintiff to purchase the property for the sum of

$362,500.

[17]     Counsel for the plaintiff has prepared an order for the property to be sold to the plaintiff for the sum of $362,500. In terms of that order, $39,079.92 is to be deducted from the defendant’s share in the proceeds of sale in respect of the costs that have been ordered against her together with her share of the outgoings.

[18]     Pursuant to the order, the defendant is to receive $111,646.08.

[19]     In the circumstances and for the reasons outlined above, there will be orders in terms of the draft order submitted by the plaintiff to give effect to the plaintiff’s offer to purchase the property for $362,500.

[20]     Mr Jefferson’s instructions are now concluded and in the circumstances he is thanked for his assistance. Mr Jefferson’s costs should be met by the Court.

Associate Judge Robinson