Nakon v Eyles

[2018] NZHC 870

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE

CIV-2017-454-95

[2018] NZHC 870

UNDER

sections 339 and 343 of the Property Law Act 2007

IN THE MATTER

of an application for Orders for Sale and Attribution of Proceeds of Sale

BETWEEN

TRACEY THERESA NAKON

Applicant

AND

PHILIP FRANCIS EYLES

Respondent

Hearing:	30 April 2018
Counsel:	G J Woollaston for Applicant No appearance for Respondent
Judgment:	30 April 2018
Reissued:	14 May 2018

JUDGMENT OF CHURCHMAN J

Introduction

[1]    The applicant and respondent are the registered proprietors of a residential property situated at 960 Tremaine Ave, Palmerston North being all the land and buildings comprised in Computer Freehold Register WN540/167 (“the property”).

[2]    The parties inherited the property from their late father and it has been vacant since their late stepmother passed away on 9 July 2015.

NAKON v EYLES [2018] NZHC 870 [30 April 2018]

[3]    The applicant is not estranged from the respondent but has not spoken to him for some five years and efforts to contact him about the property has proved fruitless.

[4]    The applicant has personally met the costs of maintaining the property since July 2015 but given the fact that she resides in Melbourne, Australia and the property is located in Palmerston North, this has created practical difficulties.

[5]    Notwithstanding the efforts that have been made to maintain the property, the fact that no-one is residing there means that it is a potential target for vandalism or other adverse activity. The property is not generating any income but is continuing to incur ongoing maintenance costs.

The application

[6]The application has three different aspects:

(a)The applicant seeks an order pursuant to s 339(1)(a) of the Property Law Act 2007.

(b)The property listed in Schedule 1 of the application be sold on the terms and conditions specified in Schedule 2.

(c)An order pursuant to s 343(a) of the Property Law Act 2007 that the applicant shall be entitled to receive compensation on the count of her maintenance of the respondent’s interest in the property as specified in Schedule 3 and costs.

Analysis

[7]    Having read the material on the Court file, and heard from Mr Woollaston, I am satisfied that this is an appropriate case for the making of orders pursuant to both ss 339(1)(a) and 343(a) of the Property Law Act 2007.

[8]    I am satisfied that the proposed terms and conditions of sale set out in Schedule 2 to the originating application of 29 November 2017 are appropriate with one modification. That one modification is that the public trustee is appointed to

execute any agreement for sale and purchase and any conveyancing documentation required for the sale of the property on behalf of the respondent.

[9]    I am also satisfied that this is an appropriate case for the applicant to be refunded from the net proceeds of the sale of the property, the sum set out in subparas

(i) and (ii) of Schedule 3 to the originating application of 29 November 2017, together with the costs incurred by her for the period between September 2017 and the date of settlement of the sale of the property as specified in subpara (iii) of Schedule 3 (incorrectly recorded as the second (ii) in that schedule) of the originating application. Such costs to be submitted by the applicant to the Registrar and certified by the Registrar.

[10]   The actual and reasonable costs of the applicant in relation to these proceedings are also to be met from the sale proceeds of the property. Again, once they have been certified by the Registrar.

Churchman J

Solicitors:
Jacobs Florentine Solicitors, Palmerston North for Applicant