Official Assignee v Harding - [2022] NZHC 1509

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1100 [2022] NZHC 1509

UNDER Section 339 of the Property Law Act 2007

IN THE MATTER

of the bankrupt estate of Paul Harding

BETWEEN

OFFICIAL ASSIGNEE IN BANKRUPTCY OF THE PROPERTY OF PAUL HARDING

Plaintiff

AND

ANTHONEDA JULIE HARDING

Defendant

Hearing: 28 June 2022

Appearances:

R Hindriksen for the Plaintiff

No appearance by or for the Defendant

Judgment:

28 June 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 28 June 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr G Neil and Mr R Hindriksen, Meredith Connell, Office of the Crown Solicitor, Auckland

OFFICIAL ASSIGNEE v HARDING [2022] NZHC 1509 [28 June 2022]

[1] This application for summary judgment by the Official Assignee (Assignee) was listed for first call today. The Assignee seeks orders under s 339 of the Property Law Act 2007 (PLA) that the property at Unit 1E, Morning Star Units, 20 Morning Star Place, Mt Albert, Auckland (the property)1 be sold and the proceeds be divided between the defendant, Ms Harding, and the Assignee.

[2] The documents were served on Ms Harding on 16 May 2022. She did not file any opposition and there was no appearance by or for her this morning.

[3] Mr Hindriksen, for the Assignee, sought summary judgment today. He had filed a helpful memorandum in support. As he submitted, there is no doubt that applications for sale orders under s 339 of the PLA are amenable to the summary judgment procedure and summary judgment has been granted in many cases.

[4] However, none of the cases he cited involved judgment in a list call. Even where the application is undefended, applications for such sale orders ordinarily proceed by way of a formal proof hearing. That is because s 339 of the PLA involves the exercise of a judicial discretion having regard to prescribed statutory factors requiring a judgment with reasons. Such applications are generally not suited to orders in a busy list court. An exception not requiring a formal proof hearing is Bank of New Zealand v Padamati.2

[5] In this case, there was time in the list this morning and I have now had an opportunity to review the statement of claim and affidavits. A formal proof hearing is not required and would add further cost which, if the orders sought are made, would ultimately reduce Ms Harding’s share of the sale proceeds.

Background

[6] On 8 October 2014, Ms Harding’s husband, Mr Paul Harding, purchased the property subject to a mortgage to Bank of New Zealand (BNZ). The property is a residential unit.

1 More particularly described in identifier 302876, legal description Unit F15 and Accessory Unit 175 and 1/70th share of Accessory Unit 456-457, 459 Deposited Plan 346086.
2 Bank of New Zealand v Padamati [2021] NZHC 45.

[7] On 26 March 2019, Mr Harding…

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 Official Assignee v Harding

Details

AGLC: Official Assignee v Harding [2022] NZHC 1509
Case: [2022] NZHC 1509
Decision Date: 28 June 2022

CaseChat Overview and Summary

In this case, the Official Assignee of the Property of Paul Harding sought summary judgment to obtain orders for the sale of a residential property and the division of the proceeds among the parties. The application was heard on 28 June 2022 by Gault J. The defendant, Anthoneda Julie Harding, did not appear or file any opposition. The Assignee argued that the application was suitable for summary judgment, but the court noted that such applications generally require a formal proof hearing due to the exercise of judicial discretion and statutory factors that must be considered. However, given the circumstances of this case and the opportunity to review the relevant documents, the court found that a formal proof hearing was not necessary.

The background of the case reveals that Paul Harding, the bankrupt, had purchased the property with his wife, Anthoneda Julie Harding, and the Official Assignee had determined that Anthoneda Julie was beneficially entitled to a half share in the property. The Assignee had offered Anthoneda Julie the opportunity to purchase the Assignee's half share or agree to sell the property on the open market, but she had refused both options. The court found that the statutory factors weighed in favor of granting the orders sought by the Assignee, particularly because Anthoneda Julie had not opposed the claim and the Assignee had given her reasonable opportunity to avoid a court-ordered sale.

The court granted the orders sought by the Assignee, with some modifications. The property was to be sold by public auction with a reserve set at $430,000, and the proceeds were to be disbursed in a specific priority and manner. The orders were stayed for 28 days to provide Anthoneda Julie with a final opportunity to purchase the Assignee's half interest in the property. The court also reserved leave for the Assignee to urgently return to the Court if necessary and ordered costs on a 2B basis, together with disbursements as fixed by the Registrar.

Orders