Official Assignee v Mathiesen
[2017] NZHC 3108
•13 December 2017
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2016-476-000049 [2017] NZHC 3108
BETWEEN THE OFFICIAL ASSIGNEE
Applicant
AND
GABRIELLE PAULETTE MATHIESEN (BANKRUPT) AND GORDON WALLACE CAMERON MCNAB AS TRUSTEES OF THE SWEET PEA FAMILY TRUST
First Respondents
GALLAWAY COOK ALLAN Second Respondent (ENDED)
JAN HENDRIK MATHIESEN Third Respondent
Counsel: G E Slevin for Applicant
G P Mathiesen and G W McNab In Person as First Respondents
Judgment:
13 December 2017
JUDGMENT OF GENDALL J
OFFICIAL ASSIGNEE v MATHIESEN [2017] NZHC 3108 [13 December 2017]
Introduction
[1] In a judgment I issued on 26 September 2017 (following a hearing on 8 August
2017) the application in this proceeding by the applicant the Official Assignee succeeded. An order was made with respect to a property of the Sweet Pea Trust (the Trust Property) in the following terms:
[61] …An order is now made directing the sale of the Trust Property at 282
Timaru-Pareora Road, being Lot 1, DP433956, LINZ Title Identifier 528849, by this Court.
[2] At para [62] of that 26 September 2017 judgment I noted that directions were now required on two matters. These were first, the process and terms of the sale of the Trust Property and, secondly, the orders sought in the application by the Official Assignee for vacant possession of the Trust Property to be given up. In this judgment I now address and give those directions.
Process and further directions
[3] In doing so I note the further directions in my 26 September 2017 judgment at para [63] which stated:
[63] Directions noted at [62] above are now made as follows:
(a) The Official Assignee by 10 October 2017 is to file and serve her/his memorandum setting out her/his submissions and argument in support of the orders and directions sought in terms of [62](a) and (b) above.
(b) Mr McNab and Ms Mathiesen are, by 31 October 2017, to file and serve a memorandum setting out their submissions and arguments regarding these orders and the directions sought by the Official Assignee.
(c) Those memoranda are then to be provided to me and, in the absence of either party indicating they wish to be heard further with respect to those issues, I will give my decision with respect to the further directions and orders sought by the Official Assignee on the basis of all the material then before the Court.
[4] On 10 October 2017 the Official Assignee filed in this Court a detailed memorandum setting out submissions in support of the sale and vacant possession orders sought in compliance with para [63](a) noted above.
[5] Mr McNab and Ms Mathiesen, however, have not filed any memorandum setting out submissions and arguments directed at the orders and directions sought by the Official Assignee. Originally, as noted in para [63](b) above, this was to be completed by 31 October 2017. On 17 October 2017, I had issued a minute in this proceeding again drawing the attention of Ms Mathiesen and Mr McNab of the need to comply with the directions contained in my judgment at para [63](b). Then, on
30 November 2017 I issued a detailed minute and decision in this proceeding. It is useful to set out relevant aspects of this in some detail which I now do:
[1] In recent weeks this proceeding it seems has been the subject of some confusion, especially in light of material that the first respondents,
Ms Mathiesen and Mr McNab, have purported to file. I issue this minute for two reasons: first, to allay any confusion that may still be present and
secondly, as matters of serious concern arise now over the next steps faced by parties in this proceeding and, in particular, the first respondents,
Ms Mathiesen and Mr McNab. I note, too that throughout this proceeding Ms
Mathiesen and Mr McNab have been self-represented. I wish to ensure that there is no doubt or uncertainty over the position which is to prevail with regard to the order made at para [61] of my 26 September 2017 judgment in this proceeding (the judgment) for the sale of the property at 282 Timaru- Pareora Road (the Trust Property). This sale ordered by the Court was subject only to formalising the orders to be made in terms of the sale process. Therefore, directions are now required for the process and terms for this sale and also for possible orders sought by the Official Assignee for vacant possession of the Property.
…
[21] It is now 30 November 2017. No further memorandum of submissions has been received from Ms Mathiesen and Mr McNab despite my direction that they would have until 5 p.m. on 20 November 2017 to provide this. Instead, it can only be presumed that they may wish to rely on matters they have placed before the Court in their “Request for Hearing” documents filed 2 November 2017 and 9 November 2017. An issue arises here, however, in that both these “Request for Hearing” documents refer to and appear to rely upon paras [64] and [65] of my 26 September 2017 judgment. As I have noted above, however, those provisions simply relate to the deferred matters for consideration by the Court once the Trust Property is sold. They deal with distribution of the fund arising following the sale and also the $20,000 held in escrow. The prior matters to be determined, however, as outlined at para [62] of the judgment and noted above, are directions required concerning the process and terms of sale of the Trust Property itself, and the orders the Official Assignee now seeks for vacant possession of the Trust Property to be given up.
[22] Nowhere in the material which has been filed by Ms Mathiesen and
Mr McNab in this Court are those issues concerning the process and terms of
sale of the Trust Property and the request for vacant possession addressed.
…
[25] …I return to the directions given at para [63] of my 26 September
2017 judgment noted at para [12] above. I refer in particular to para [63](c). As noted there, this direction provides that, in the absence of either party
indicating they wish to be heard further, with respect to issues regarding the
process and terms of sale of the Trust Property and the vacant possession order sought by the Official Assignee, I would give my decision on the directions sought by the Official Assignee on the basis of the material then before the Court.
…
[27] It is entirely unclear to me whether Ms Mathiesen and Mr McNab may wish here to have a further hearing directed at these para [62] matters or simply to provide written submissions directed on those issues or otherwise.
[28] These are important issues with significant consequences. They may well result in the occupants of the Trust Property (which presumably includes Ms Mathiesen) being required to vacate the property and orders being made regarding the subsequent sale process.
[29] I am mindful here and repeat that Ms Mathiesen and Mr McNab are self-represented litigants. They are to have one final opportunity to advise what, if anything, they may wish the Court to consider before giving its decision on the para [62] orders and directions sought by the Official Assignee.
[6] With all these matters in mind, at para [30] of my 30 November 2017 minute and decision, I made the following directions:
Present directions
[30] That said, the following directions are now made:
(a) Ms Mathiesen and Mr McNab are to have until 5 p.m. on Thursday, 7 December 2017, to advise the Court and the Official Assignee by memorandum appropriately filed and served:
(i) Whether or not they may have any submissions/arguments in opposition to the orders and directions sought by the Official Assignee concerning the process and terms of the sale of the Trust Property and the Official Assignee’s request for vacant possession of the Property to be given up and, if so, to provide full written details of those submissions and arguments;
(ii) Alternatively, whether or not they may wish to be heard further with respect to those particular issues outlined at para [30](a)(i) above and, if so, estimating a reasonable time which may be required for the hearing of these matters.
(b) The Official Assignee is then to have until 5 p.m. on Thursday,
14 December 2017, to file and serve his/her memorandum in response.
(c) Those memoranda are to be referred to me. A decision will then be made as to a way forward with respect to these particular matters.
(d) For the absence of any doubt I repeat:
(i) the issues to be addressed at this point are limited to first, the process and terms of the sale of the Trust Property and secondly, the Official Assignee’s request for vacant possession orders for the Trust Property to be given up; and
(ii) subsequent issues concerning distribution of the fund arising following the sale of the Trust Property and also concerning the $20,000 held in escrow are deferred in the meantime (as I have noted at para [64] of the judgment).
[7] Despite those directions and para [30](a) in particular, there has been no response of any kind from Ms Mathiesen or Mr McNab.
[8] As a consequence, and understandably, there has also been no “Memorandum in Response” filed on behalf of the Official Assignee, nor any need for this as directed in para [30](b) of that minute. I now give this decision on the basis of all the material in this proceeding which is presently before the Court. I have carefully considered and taken into account all that material in making this decision.
The sale terms and possession orders sought
[9] At a general level here, in giving effect to the sale order outlined in my
26 September 2017 judgment, it is important to note r 11.22 of the High Court Rules. This states:
11.22 Judgment directing sale of property
(1) Property to be sold because of a direction in a judgment or order must be sold in a way that ensures that the best price is obtained for it, unless the court directs otherwise.
(2) The court may do any 1 or more of the following, when giving the judgment or making the order or at a later time:
(a) give directions about the method of the sale:
(b) give directions about the terms and conditions of sale: (c) if the sale is by auction,—
(i) fix a reserve price, if appropriate; and
(ii) define the rights of parties to bid at the sale.
(3) All parties must co-operate in effecting the sale of the property and do everything necessary to give effect to the sale, including signing any documents required to transfer or convey the property to the purchaser.
(4) To effect the sale of the property, the court may—
(a) give all necessary directions, including directions in relation to the transfer or conveyance of the property sold; and
(b) appoint a person to sign any documents required to transfer or convey to the purchaser the property sold.
[10] In the present case, the Official Assignee proposes in counsel’s Memorandum of 10 October 2017, first, that an order should be made for vacant possession of the Trust Property and then, secondly, the property should be sold by public auction following a six week marketing period to be undertaken by a suitably qualified real estate agent to be appointed by the Registrar/Sheriff of this Court.
[11] The Official Assignee further suggests that the terms of this sale should be the same as or similar to those outlined in her/his standard terms included in the “Sale of Real Property by Auction Particulars and Conditions of Sale” attached to this judgment as Schedule A. It is noted that this standard form of Sale and Purchase Agreement has been redacted to exclude Vendor Warranties the Registrar/Sheriff is not in a position to give. Counsel for the Official Assignee says this document reflects the terms on which sales of vested properties are undertaken by the Official Assignee. These sale terms he says are appropriate here.
[12] Counsel for the Official Assignee goes further in his 10 October 2017
Memorandum to suggest that Anthony Harper who are available should be appointed to attend to the conveyancing relating to the sale on behalf of the Registrar/Sheriff.
[13] As to the issue of the process and terms of sale, I agree that the following is appropriate and orders to this effect will follow:
(a) The property is to be sold by way of public auction following a six week marketing period and this is to be undertaken by a suitably qualified real estate agent appointed by the Registrar/Sheriff following consultation with the Official Assignee.
(b)The marketing process is to be determined by the Registrar/Sheriff in consultation with the appointed real estate agent and the Official Assignee.
(c) The terms of sale are broadly to follow the draft terms and conditions attached as Schedule 1 subject to minor adjustment thought appropriate after consultation between the Registrar/Sheriff and the Official Assignee.
(d)The settlement date for the sale is to be not less than two weeks following the auction date or such later date as may be negotiated between the ultimate purchaser, the Registrar/Sheriff and the Official Assignee.
(e) Following settlement of the sale the net sale proceeds after repayment of proper mortgages, charges and outstanding debts on the property are to be paid into this Court and held in trust on interest-bearing deposit until further order of this Court is made.
[14] For the avoidance of any doubt, the legal description of the Trust Property which is to be sold is identifier 528849, being Lot 1 Deposited Plan 433956 (Canterbury Land Registration District) known as 282 Timaru-Pareora Road, Timaru.
[15] I now turn to the order sought by the Official Assignee for vacant possession to be given up. So far as this is concerned, having carefully considered all the material which is before the Court and the circumstances prevailing in this case, I am satisfied that to facilitate a proper and orderly marketing process and to ensure the best sale price is obtained, the Trust Property should be vacated and ideally the sale proceed with vacant possession.
[16] That said, an order requiring the Trust Property to be vacated is appropriate and is to follow. Given however, as I understand the position, that the Trust Property includes an area of farmland which presumably involves the grazing of livestock, a reasonable period for vacating will be required. This is particularly the case because we are experiencing a dry early summer period in Canterbury and arranging alternative summer grazing for livestock may require a little time.
[17] The order for vacant possession which is to follow will require therefore that the property is to be vacated by no later than 16 February 2018.
Orders
[18] The Official Assignee’s application for a vacant possession order of the Trust Property succeeds. The following orders for vacant possession of the Trust Property are now made:
TO the Registrar/Sheriff at Timaru
1. The first respondents are ordered to remove all livestock and other chattels (the chattels) from the Trust Property now described
as:
the estate in fee simple in identifier 528849 being Lot 1, Deposited Plan 433956 (Canterbury Land Registration District) known as 282 Timaru-Pareora Highway, Timaru.
and to vacate the Trust Property no later than 4 p.m. on
16 February 2018.
2. The first respondents are ordered to deliver up all keys to the property to the Registrar of the High Court at Timaru by no later than 4 p.m. on 16 February 2018.
3. In the event orders 1 and/or 2 are not complied with and have not been complied with for 5 working days the Registrar/Sheriff is required and authorised to evict any occupants of the Trust Property with the assistance of such other persons as may be required and to take such steps as may be required to secure the Trust Property.
4. In the event that any chattels remain at the Trust Property following delivery of the keys to the Registrar/Sheriff or the eviction of the occupants the Official Assignee is directed to uplift such chattels and remove them into storage pending collection by the occupants or their duly authorised agents.
5. In the event the said chattels remain uncollected by the occupants or their duly authorised agents after 90 days, the Official Assignee is directed to sell or dispose of the said chattels, to deduct the costs of uplifting and storing the said chattels from any proceeds of sale and to pay the balance of the proceeds into court pending its determination of an application for their release by whosoever may be entitled to them.
6. In the event the Official Assignee incurs any costs in the course of complying with these orders that are not recovered from any proceeds of sale of the chattels those costs are to be recovered as expenses incurred in the administration of the bankruptcy of Gabrielle Paulette Mathiesen.
[19] As to the proposed form of sale order required here, this is to be as follows:
A sale order is now made in the following terms: TO the Registrar/Sheriff at Timaru:
1.This Court authorises and requires you or your authorised agent to secure the vacant possession of the Trust Property pursuant to the order noted at [18] above and to sell the estate, right, title and interest of the registered proprietor the judgment debtor Grant John Calvert, as a former trustee of the Sweet Pea Family Trust and pursuant to his right to be indemnified from property of the Sweet Pea Family Trust, for debts properly incurred by him in that capacity, in the land now described as:
the estate in fee simple in identifier 528849 being Lot 1, Deposited Plan 433956 (Canterbury Land Registration District) known as 282 Timaru-Pareora Road, Timaru.
2.There being no chattels, including money, cheques or other securities or other land held by the judgment debtor as a former trustee of the Sweet Pea Family Trust, you are not required to seize chattels or other land.
3.The sale of the Trust Property is to be conducted by way of public auction following a six week marketing period and this is to be undertaken by a suitably qualified real estate agent to be appointed by you the Registrar/Sheriff following consultation with the Official Assignee.
4.The terms of the marketing arrangements are to be settled after negotiation between the real estate agent, the Official Assignee and you the Registrar/Sheriff.
5.The auction date is to follow the six week marketing period and it and the reserve price for the auction are to be set by you the Registrar/Sheriff after consultation with the appointed real estate agent and the Official Assignee.
6. The proposed terms of sale for the Trust Property are broadly to be the
same as or similar to those in the draft Terms of Sale in the attached
Schedule “A”, subject to any minor adjustment as may be thought appropriate after consultation between the Official Assignee and you the Registrar/Sheriff.
7.The settlement date under the sale is to be not less than two weeks following the auction date or such later date as the Official Assignee and you the Registrar/Sheriff shall negotiate with the ultimate purchaser.
8.Anthony Harper, Solicitors, Christchurch, are appointed as Lawyers to complete the conveyancing aspects of this sale.
[20] As noted above, I confirm that orders are now made in the terms set out in paras [18] and [19] of this judgment.
[21] Leave is reserved for any party to approach the Court on 48 hours’ notice if clarification of these orders or additional directions (including any directions relating to the ultimate transfer or conveyance of the Trust Property and/or the signing of any documents for that transfer) may be required.
[22] Finally, for completeness, I note that once the auction sale takes place and the Trust Property is sold, consideration as to distribution of the fund arising, together with the $20,000 held in escrow, being matters which were deferred earlier as noted at paras [64] and [65] of my 26 September 2017 judgment, can take place.
Costs
[23] This judgment and the orders made address the issues noted at para [2] of my
26 September 2017 judgment in this proceeding. Para [67] of that judgment awarded costs and disbursements on the application the subject of that decision to the Official Assignee against Ms Mathiesen and Mr McNab. I see no reason why costs on the matters the subject of the present judgment should not follow similarly.
[24] Costs and disbursements (if any) are therefore awarded to the Official Assignee on the present matters the subject of this judgment on a category 2B basis to be paid by Ms Mathiesen and Mr McNab.
...................................................
Gendall J
Copies to:
Grant Slevin, Barrister, Christchurch
First Respondents Ms Mathiesen and Mr McNab
Third Respondent
NB: An Attachment to this judgment is included as part of the judgment as
Schedule “A”. This Schedule “A” is in an attached document.
3
0
0