Official Assignee v Mathiesen
[2017] NZHC 2349
•26 September 2017
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CIV-2016-476-000049 [2017] NZHC 2349
BETWEEN THE OFFICIAL ASSIGNEE
Applicant
AND
GABRIELLE PAULETTE MATHIESEN AND GORDON WALLACE MCNAB First Respondents
GALLAWAY COOK ALLAN Second Respondent (ENDED)
JAN HENRIK MATHIESEN Third Respondent
Hearing: 8 August 2017
Memoranda:
From the Applicant - 15 August 2017
From the First Respondents - 15 September 2017Appearances:
G E Slevin for Applicant
G W McNab - Appears in Person for himself andG P Mathiesen as First Respondents
No Appearance for Third Respondent
Judgment:
26 September 2017
JUDGMENT OF GENDALL J
Introduction
[1] Before the Court are two applications:
(a) An application by the Official Assignee filed 19 September 2016 seeking orders directing the sale by the Court of a property belonging
to a family trust and regarding payment of certain held funds.
OFFICIAL ASSIGNEE v MATHIESEN [2017] NZHC 2349 [26 September 2017 ]
(b)An application by the first respondents seeking a stay or dismissal of the Official Assignee’s application noted above for want of jurisdiction.
[2] The second-named first respondent Gordon Wallace McNab (Mr McNab) appeared at this hearing before me in person and indicated he had authority to represent and speak also on behalf of Gabrielle Paulette Mathiesen (Ms Mathiesen), as present trustees of a Trust, known as the Sweet Pea Family Trust, to which I will refer below. He said Ms Mathiesen was not present in Court today purely because she was in Norway pursuing certain matters with her ex-husband the third respondent.
[3] Ms Mathiesen was adjudicated bankrupt by order of this Court on 11 June
2013. Mr Slevin appeared as counsel for the Official Assignee. There was no appearance for the third respondent Jan Henrik Mathiesen (Mr Mathiesen).
[4] Both of the applications noted above are opposed.
Preliminary matters
[5] At the outset, there are several preliminary matters relating to this proceeding which I now address.
[6] The first relates to recusal. This concerns a request at the outset from Ms Mathiesen and Mr McNab that I might recuse myself from hearing this matter. As best I can tell, this recusal request was advanced for reasons which revolved essentially around the fact that up to 1997 I was in legal practice in Hamilton and previously in partnership with a Mr David Jecks. Mr David Jecks is the father of a Mr Stewart Jecks who, it seems, acted for Mr and Ms Mathiesen prior to and around the time of their separation.
[7] I considered this request but was satisfied, however, and confirmed at the outset that matters raised seemed to me to be essentially irrelevant here, and further, that in any event, no proper grounds existed for my being required to recuse myself
with respect to hearing this proceeding. I confirmed this to all parties and the hearing proceeded.
[8] Next, the hearing of the applications before me was set down for one day and commenced at 10 a.m. on 8 August 2017. At the conclusion of that day, largely as a result of the lengthy cross-examination by Mr McNab of Mr Fildes, the Official Assignee who he required for cross-examination, the evidence was concluded only shortly before 5 p.m. There was no time for submissions from counsel or from Ms Mathiesen or Mr McNab. Accordingly, directions were made that the Official Assignee was to file and serve her submissions by 15 August 2017 and Ms Mathiesen and Mr McNab were to file and serve their submissions by 29 August
2017.
[9] On 15 August 2017 counsel for the Official Assignee filed his submissions with respect to matters before the Court.
[10] No submissions were filed by Ms Mathiesen or Mr McNab by 29 August
2017 as directed.
[11] Some two weeks later, on 12 September 2017 I issued a minute in this proceeding directing that Ms Mathiesen and Mr McNab would have until 5 p.m. on
19 September 2017 to file and serve any additional submissions they wished to make in this matter.
[12] That direction was met by a document being filed in the High Court at Timaru at 3:50 p.m. on 15 September 2017 by Ms Mathiesen and Mr McNab headed “Urgent Application to Stay Any Enforcement Proceeding By the Timaru District Council, Or Any Other, Against The Former Trustee Of the Sweet Pea Family Trust, Grant John Calvert, and Seeking An [sic] A Hearing, Within Two Court Days”.
[13] That document, filed in the present proceeding CIV-2016-476-49, insofar as it purports to seek orders against the Timaru District Council, is potentially problematic as the Council is not a party to this proceeding. In addition, and in any event, the “Urgent Application” as best I can tell is unclear, confused and entirely
repetitive of matters raised in earlier documentation filed on behalf of Ms Mathiesen and Mr McNab.
[14] Although it adds little that is useful with respect to matters before the Court, nevertheless I have treated and considered it as part of the further submissions of Ms Mathiesen and Mr McNab filed in accordance with my 12 September 2017 directions.
[15] For completeness I should add also that no further submissions document was received from Ms Mathiesen and Mr McNab by 5 p.m. on 19 September 2017 as directed earlier.
Background facts
[16] Ms Mathiesen and Mr Mathiesen were married but, as I understand it, they separated early in 2004. Subsequently Ms Mathiesen established a family trust known as the “Sweet Pea Family Trust” (Sweet Pea Trust), the principal beneficiaries of which are Ms Mathiesen, her children and grandchildren. Having established this Trust, Ms Mathiesen purported to transfer to it a farmlet property at Bellevue Road, Cambridge, which included the former matrimonial home, before selling this property. Soon after, with the proceeds of that sale, Ms Mathiesen in the name of the Sweet Pea Trust bought a property in Timaru.
[17] In the meantime, Mr Mathiesen had commenced relationship property proceedings in the Family Court against Ms Mathiesen. These resulted in a judgment ordering that payments be made to him by both Ms Mathiesen and by the trustees of the Sweet Pea Trust.
[18] Mr Mathiesen then appealed the Family Court decision and Ms Mathiesen herself informally cross-appealed, raising allegations against Mr Mathiesen that he had concealed certain matrimonial assets. These issues were referred back to the Family Court for determination. Mr Mathiesen was granted leave to enforce the Family Court judgment except as to the sum of $20,000 which had become available to the trustees of the Sweet Pea Trust by virtue of the sale of a Timaru property and the purchase of a less expensive property at 282 Timaru-Pareora Highway, in part the
subject of this proceeding (the Trust Property). The Family Court directed the lawyers acting at that point for Ms Mathiesen to hold this $20,000 in escrow pending the Family Court’s determination of the outstanding issues. This represents the fund originally paid into Court by Galloway Cook Allen who were previously the second respondent in this proceeding.
[19] Before me Mr Slevin for the Official Assignee acknowledged that the Official Assignee accepts that this $20,000 fund is the property of the Sweet Pea Trust. It is not Ms Mathiesen’s property which has vested in him as a result of her bankruptcy. As I have noted above, Ms Mathiesen was adjudicated bankrupt on
11 June 2013. She exercised her right of appeal from that decision adjudicating her bankrupt, but her appeal was dismissed by the Court of Appeal on 25 March 2015.1
[20] Prior to this, Mr Mathiesen had applied to the High Court for a sale order in respect of property held at the time. This Court however did not act on that application. Subsequently, Mr Mathiesen applied for Ms Mathiesen’s adjudication in bankruptcy, which order, as I have noted above, was made on 11 June 2013.
[21] In addition to her unsuccessful appeal to the Court of Appeal against this adjudication decision, Ms Mathiesen has also initiated numerous unsuccessful actions to challenge the validity of her adjudication. These actions are summarised at paras [3] – [8] of an earlier judgment in this Court.2
[22] Ms Mathiesen remained bankrupt until 18 June 2017 when, as I understand it, she may have been automatically discharged pursuant to s 290 Insolvency Act 2006.
[23] As best I can tell, Ms Mathiesen does not appear to accept that she was lawfully adjudicated bankrupt in June 2013 and now discharged in June 2017. This is in part because both Ms Mathiesen and Mr McNab share a belief that this Court has no jurisdiction to adjudicate a wife bankrupt on the application of her husband.
This argument was considered by the Court and rejected on no less than three
1 Mathiesen v Mathiesen [2015] NZCA 92.
2 Re Mathiesen, ex parte Mathiesen [2015] NZHC 2786.
occasions in the past,3 but it appears both Ms Mathiesen and Mr McNab do not accept those findings.
[24] Turning now to the Sweet Pea Trust, an original trustee of this Trust was Grant John Calvert (Mr Calvert) who was Ms Mathiesen’s accountant at the time. As a trustee of that Trust, Mr Calvert was personally liable for debts he incurred on behalf of the Trust, but he had a right to be indemnified for that liability from the assets of the Trust. He was a trustee from the inception of the Trust in November
2004 until he was removed by Ms Mathiesen in May 2014 pursuant to provisions in the Trust Deed. At that time, in May 2014, the Sweet Pea Trust was indebted to Ms Mathiesen personally for contributions she had made to its assets, a figure calculated by Mr Calvert amounting to $530,212. This amount was recorded in approved Trust accounts kept by Mr Calvert from its inception as the accountant to the Sweet Pea Trust. What is clear and acknowledged without question for Ms Mathiesen, is that the Sweet Pea Trust did still owe her at least $343,000 (possibly plus interest) advanced by her to the Trust under a Deed of Acknowledgement of Debt in April 2005 towards the purchase of the property in Timaru. As an aside, it seems also that Mr Calvert supported Ms Mathiesen’s defence to her husband’s application for relationship property division as documents annexed as Exhibit “K” to the first affidavit of Mr Fildes filed in this proceeding show. These documents it seems were located on the Family Court file in proceeding FAM-2006-019-1475. They were also before the Court in a summary judgment application brought against Mr Calvert in this Court which resulted in a consent judgment being entered against him on 29 September 2014 for $530,212. This consent judgment was obtained against him as sole registered proprietor of a Timaru property the Sweet Pea Trust had purchased and on the basis that he held that property entirely for the benefit of the Trust. Orders were also made accordingly, specifically limiting his personal liability under the judgment to the assets of the Sweet Pea Trust and subrogating the Official Assignee as judgment creditor to his
right to be indemnified from the assets of the Trust.
3 Mathiesen v District Court at Timaru [2014] NZHC 1377; Mathiesen v Hodges [2014] NZHC 2448; and Re Mathiesen, ex parte Mathiesen [2015] NZHC 2786.
[25] Mr Slevin for the Official Assignee has indicated that at that particular time no application was made for a sale order because it remained unclear whether a sale would in fact be necessary. This decision was taken, given the extent of costs and debts payable by the Official Assignee on behalf of the bankrupt, was then contingent on the outcome of proceedings in the Family Court. Those proceedings were to determine matters referred back to the Family Court by this Court on appeal. In part these matters related to a claim by Ms Mathiesen that her husband had concealed money in offshore bank accounts in amounts which, if taken into account, might have reduced the judgment debt on which she was adjudicated bankrupt to nil.
[26] These issues were finally resolved by orders of the Family Court in July
2016. This resulted in a reduction of the amount payable by Ms Mathiesen’s
bankrupt estate to her husband Mr Mathiesen but not in its elimination.
[27] Mr McNab and Ms Mathiesen as the present trustees of the Sweet Pea Trust have since made it clear that they will not voluntarily sell the Trust Property. This property appears now to be occupied once again by Ms Mathiesen. Mr Calvert, too, has declined to sell the Trust Property, because it seems he does not wish to attract the ire of Ms Mathiesen and Mr McNab. The Official Assignee says, therefore, that a sale order is necessary so that the Assignee is able to discharge her/his statutory duty to realise Ms Mathiesen’s property (including collection of outstanding debts due to her) and distribute the proceeds to her creditors. To protect his position the Official Assignee registered a caveat against the title to the Trust Property and this remains.
[28] Recently, the Official Assignee, it seems, has received a request from solicitors acting for the Timaru District Council to discharge this caveat. This is because the Council has obtained judgment against Mr Calvert for rates arrears relating to the Trust Property and it wishes to pursue a sale under the Local Government Act 2002. From all this it appears too that the current trustees of the Sweet Pea Trust are not meeting outgoings in relation to the Trust Property. Therefore, there is a real risk that the assets of the Trust will be further depleted by the growing legal expenses of its creditors if matters now before this Court are left unresolved.
Orders sought by the Official Assignee
[29] In his present application, as I have noted, the Official Assignee essentially seeks orders directing the sale of the Sweet Pea Trust Property. This is to be in satisfaction of the judgment debt the Official Assignee has obtained against the Trust and Mr Calvert, its former trustee and the sole registered proprietor of the Trust Property, being a person who now holds the property as bare trustee for the current trustees of the Trust.
[30] Next, by way of approved amendment to the current application before the Court, counsel for the Official Assignee contends that an order for vacant possession of the Trust Property should also be made to give effect to any sale order that is made. This is because of the Official Assignee’s suggestion that these matters have a consistent history of Ms Mathiesen and Mr McNab refusing to accept or comply with orders made by this and other Courts, such that Mr Slevin contends there is a real risk that unless a vacant possession order is made they will attempt to frustrate any attempt for a proper sale of the Trust Property to occur.
[31] Next, the Official Assignee seeks that this Court consider making orders which will ultimately be required directing distribution of the proceeds of the Trust Property sale and the funds that have been paid into Court. On this, Mr Slevin contends that the Sweet Pea Trust has known liabilities of at least $650,000. These represent the sum of $530,212 owing to the Official Assignee through Ms Mathiesen’s bankruptcy and the sum of $120,000 plus Judicature Act interest owing to Mr Mathiesen. The only known tangible asset of the Sweet Pea Trust is the Trust Property itself.
[32] As to that property, it seems from the Timaru District Council’s property records that it has a capital value of $500,000. On this basis it would seem therefore that the Sweet Pea Trust is insolvent. I understand from Mr Slevin that the Trust also has creditors other than the Official Assignee and Mr Mathiesen, which would further worsen the position.
[33] So far as the issue concerning distribution of the proceeds of sale of the Trust
Property are concerned, however, before me Mr Slevin suggested that, under all the
circumstances here, it may be best for this distribution matter to be reserved for later consideration. As will appear later in this judgment, I agree. I will deal with that issue shortly.
Applications before the Court
[34] The issues before the Court in considering the Official Assignee’s present application are generally simple ones. The “Application” made by Ms Mathiesen and Mr McNab, referred to at para [1](b) above, purporting to seek “A Stay or Dismissal of the Official Assignee’s Application” in reality is simply an opposition to the Official Assignee’s application. In giving this decision, I have considered it, and all the matters it raises, as such.
[35] Matters before the Court to be properly considered here, as I note, are essentially therefore, in my view, somewhat straightforward. The present application is supported by affidavit evidence. This includes two affidavits from Russell David Fildes (Mr Fildes) the present Official Assignee for the Southern Region of New Zealand, and one supporting affidavit from Amanda Stutt.
[36] Ms Mathiesen and Mr McNab gave notice that Mr Fildes was required for cross-examination at the hearing of this application. He appeared before me for this purpose.
[37] His cross-examination conducted by Mr McNab began at 11:05 a.m. on the day of the hearing, 8 August 2017, and, as I have noted, continued until 4:50 p.m.
[38] That cross-examination, and indeed all the submissions which have been advanced on behalf of Ms Mathiesen and Mr McNab in opposition to this application, was convoluted, repetitive and much of it essentially irrelevant. As I understand it, this followed a pattern which has occurred on many occasions in the past when Ms Mathiesen and Mr McNab have been before this and other courts.
[39] In this regard, it is useful to recall the comments of Panckhurst J in an 8 April
2014 judgment he gave in this Court involving these parties and Ms Mathiesen in particular. This related to an appeal against interlocutory directions made in the
Family Court.4 At para [15] of that decision, where both Ms Mathiesen appeared in person and Mr McNab appeared for the Sweet Pea Family Trust, Panckhurst J stated:
[15] I do not propose to respond to the multiple grounds of complaint raised at the hearing. Both Mrs Mathiesen and Mr McNab made submissions to me as if it was open to this Court to conduct a wide ranging enquiry into every aspect of this convoluted proceeding. This is not possible. Appeal rights have already been exercised in relation to the original Family Court decision. Mrs Mathiesen’s application to appeal out of time has been exhaustively considered, including by a leave application to the Supreme Court. Challenge has been raised to the bankruptcy adjudication, but without success.
[16] The present appeal is not a vehicle to challenge all matters of
complaint…
[40] The hearing of the present application before me without question followed this pattern. As best I can tell the only real ground advanced in opposition to the Official Assignee’s application was simply the contention that, at the outset in June 2013, Ms Mathiesen was not lawfully adjudicated bankrupt and all matters therefore need to be wound back. Similarly, Ms Mathiesen seems to contend that her release from this bankruptcy, which appears to have occurred this year, therefore did not properly occur, as she should never have been bankrupted in the first place.
[41] On these aspects, Mr McNab endeavoured to argue that all matters with respect to the Official Assignee’s application should be simply deferred at this point. This is because as he claims an application for leave is to be made “imminently” to the Supreme Court to appeal the earlier decision of the Court of Appeal which dismissed Ms Mathiesen’s appeal against her bankruptcy adjudication.
[42] That Court of Appeal decision was made some two and a half years ago. As I understand it, there may have been already an attempt to seek the leave of the Supreme Court to appeal that decision without success. Be that as it may, I am satisfied that in all the circumstances here any such further attempt to seek the leave of the Supreme Court for a further appeal is entirely unfounded and must fail.
[43] Effectively, therefore, and taking into account all the material Ms Mathiesen and Mr McNab have purported to file in this proceeding, there is no real substantive
4 G P Mathiesen v J H Mathiesen [2014] NZHC 703.
opposition of any merit advanced before me with respect to the Official Assignee’s
application.
Analysis
[44] As I have noted in this case Mr Calvert was an initial trustee of the Sweet Pea Family Trust and, as such was personally liable for debts he incurred on behalf of the Trust. For these he had a right to be indemnified for that liability from the assets of the Trust – Levin v Ikiua.5 There is no doubt here that the Sweet Pea Trust was indebted to Mrs Mathiesen for contributions she had made to its assets totalling a final figure of $530,212 for advances she had made to enable it to purchase the property it held. This amount was established from the approved accounts for the
Trust kept by Mr Calvert.
[45] The issues to be determined here, as I have noted above, are whether the Court should order the sale of the Trust Property owned by Mr Calvert as a former trustee of the Trust, what other orders may be required to give effect to any sale order if one is made, and how the resulting funds should be distributed.
[46] The general legal position is that a trustee, as the holder of legal title to property owned by the Trust, is entitled to deal with it to discharge trust liabilities6 and to retain it until they have been met.7 A trustee has a right of indemnity encompassing a right to reimbursement for trust expenses that she or he has been required to meet from their own funds. A trustee also has a right of exoneration,
being a right to apply the trust fund to discharge outstanding liabilities.8 These rights
are protected by an equitable lien,9 which arises by operation of law, constitutes a proprietary interest in the trust property and is not dependent on possession.10
[47] Accordingly, it is clear here that Mr Calvert is the registered proprietor and holds the title to the Trust Property at 282 Timaru-Pareora Highway in trust for
Mr McNab and Ms Mathiesen as the new trustees of the Sweet Pea Trust, subject to
5 Levin v Ikiua [2009] NZHC 879.
6 Ex Parte Edmonds (1862) 45 ER 1272 at 1277; Trustee Act 1956, s 38(2).
7 X v A [2000] 1 All ER 490.
8 Worrall v Harford (1802) 8 Ves Jun 4; 32 ER 250 (CH).
9 Jennings v Maver (1902) 1 KB 1 (CA).
10 Octavo Investments Pty v Knight (1979) 144 CLR 360.
his right to be indemnified from the property for the judgment debt the Official Assignee has obtained against him, if that debt was a liability he reasonably incurred in his capacity as a trustee.11
[48] In the present case there is no evidence of any kind to suggest the liability now standing at $530,212 was not reasonably incurred by Mr Calvert. Indeed, it represents the balance of the original loan advance made to the Trust by Ms Mathiesen to enable it to purchase the various properties which it has held. As best I can tell from arguments advanced before me by Mr McNab, the first respondents now claim that in about 2009, when the Sweet Pea Trust purchased the Trust Property, this was in some way what Mr McNab described as a “crooked transaction” where Mr Calvert had not “bothered to act properly as a trustee of the Trust”. Absolutely no evidence to support this allegation is before the Court, however. In addition, what appears clear is that the Trust Property was purchased at the behest of Ms Mathiesen and it involved her requested sale of the previous Timaru property owned by the Trust. All of this, as I understand it, was carried out with the clear knowledge and, indeed, at the direction of Ms Mathiesen. It is clear here also that the Official Assignee is subrogated to the equitable lien securing Mr Calvert’s right of indemnity. The effect of this subrogation order made by the Court is to give the Official Assignee the benefit of the trustees’ equitable lien which is a species of
equitable charge arising by operation of law.12 A charge of this type is the
appropriation of real or personal property of a debtor for the discharge of a debt or other obligation without giving the creditor either a general or a special property in, or possession of, the subject of the security. The creditor, however, has a right of judicial sale in case of non-payment of the debt, which is the case here.13
[49] This Court’s jurisdiction to make a sale order in a situation such as the present derives now from s 12 Senior Courts Act 2006. This confers upon this Court the jurisdiction it had at the commencement of the Senior Courts Act (under the Judicature Act 1908) and the inherent judicial jurisdiction that may be necessary to
administer the laws of this country. The present application by the Official Assignee
11 Target Holdings Limited v Redferns (a firm) (1996) AC 421 (HL).
12 Re Birmingham [1959] CH 523.
13 W Clarke (Ed) Fisher & Lightwood’s Law of Mortgage (12th Ed) Lexis Nexus Butterworths, London, 2006 at 1.5.
is one made properly in equity. The debt in question has been long outstanding. An order for sale is appropriate here.
[50] And, on 19 October 2016, counsel for Mr Mathiesen, as the third respondent in this proceeding, filed a notice confirming that Mr Mathiesen did not oppose the orders sought here by the Official Assignee. Indeed, in the Official Assignee’s application, if a sale order for the Trust Property is made then a direction is also sought that from the proceeds of sale, part will be applied in satisfaction of the amount owing to Mr Mathiesen amounting to $120,000 plus (unquantified) interest payable under s 65A District Courts Act 1947.
[51] As I note above, it seems clear that the Sweet Pea Trust is likely to be insolvent, given its level of indebtedness. I am satisfied in all the circumstances here, that an order for the sale of the Trust Property is appropriate and necessary in order that the debts of the Trust to both Ms Mathiesen and Mr Mathiesen can be repaid. This will enable the Official Assignee therefore to discharge her/his duty to realise the property of Ms Mathiesen in her bankruptcy and to distribute the proceeds to her creditors. This is also necessary, given first, what I understand to be recent and concerning steps which have been signalled by the Timaru District Council to commence a rating sale against the property, and secondly, for the Official Assignee to also pursue her rights against the Trust Property pursuant to the caveat she registered some time ago.
[52] In conclusion, on the Official Assignee’s application to direct a sale of the
Trust Property I find:
(a) The Trust Property held by Mr Calvert as registered proprietor as a former and initial trustee of the Sweet Pea Trust is held on trust by him for Ms Mathiesen and Mr McNab as the present trustees of the Trust.
(b) Mr Calvert has a right to be indemnified from the assets of the Sweet
Pea Trust for costs and liabilities he reasonably incurred as a trustee
and this includes the debt to Ms Mathiesen now standing at $530,212 for which the Official Assignee has judgment against Mr Calvert.
(c) The High Court at Hamilton, by consent, has made an order subrogating the Official Assignee to Mr Calvert’s right to be indemnified from the assets of the Sweet Pea Trust and, given there are no other, realisable trust assets other than the Trust Property at
282 Timaru-Pareora Highway, a direction for the sale of this property is appropriate and must follow.
[53] It is clear too from material before the Court that Ms Mathiesen and Mr McNab, as the present trustees of the Sweet Pea Trust, have been requested to conduct an orderly sale of the Trust Property but they have emphatically refused to do so. This has necessitated the present application being brought by the Official Assignee.
[54] The consequential relief sought by the Official Assignee pursuant to the subrogation rights ordered by the Court earlier relating to the Trust Property is entirely proper and should be granted here.
[55] For these reasons an order for sale is to follow.
Orders sought directing payments by the Court from the proceeds of the Trust
Property sale
[56] As I have noted at para [33] above, counsel for the Official Assignee has suggested that the issue of what orders should be made for the distribution of the fund which arises following the sale of the Trust Property and also regarding the
$20,000 held in escrow, (noted at para [18] above) should be deferred at this point. This deferral, it is said, should be made to allow for further consideration, once the size of the fund, the extent of the Official Assignee’s obligations, and the quantum of Mr Mathiesen’s claim against the fund all become known.
[57] I agree that this is a sensible course. A direction to this effect will follow.
Order for vacant possession of the Trust Property
[58] As I note above, the Official Assignee has also sought by way of amendment an order for vacant possession of the Trust Property on the basis that this would assist a sale to be properly and fairly achieved.
[59] Before me, however, there was little argument raised with respect to this possession order. It is unclear whether such an order would be opposed. Further, the terms of any such possession order sought are also entirely unclear.
[60] The Court requires more information as to these matters. A direction with regard to these aspects will also follow.
Result
[61] The Official Assignee’s application outlined at para [1](a) above succeeds in part. 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.
[62] Directions are required, however, and are now to be made concerning: (a) The process and terms of the sale of the Trust Property; and
(b)The orders sought by the Official Assignee for vacant possession of the Trust Property to be given up.
[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.
[64] Regarding the orders sought by the Official Assignee directing distribution of the fund arising following the sale of the Trust Property and also concerning the
$20,000 held in escrow, as I note above at [56], consideration of these is to be deferred as set out therein.
[65] A direction is made therefore that as to the matters in [64] above, these are deferred with leave reserved to the parties on five working days’ notice to revert to the Court with a request that these matters might be brought on for consideration at an appropriate hearing or otherwise.
Costs
[66] As to costs in this matter I see no reason why costs should not follow the event in the usual way here. There can be no question that the Official Assignee has largely succeeded with her present application and is entitled to an award of costs with regard to her application to date.
[67] Costs are therefore awarded to the Official Assignee on this application for matters up to the present time, these costs to be paid by Ms Mathiesen and Mr McNab on a category 2B basis together with disbursements as fixed by the Registrar.
[68] If Mr Mathiesen may seek costs in this matter, then this may be the subject of memoranda to be filed sequentially and to be referred to me for decision.
...................................................
Gendall J
Copies to:
Applicant The Official Assignee
First Respondents Ms Mathiesen and Mr McNab
Third Respondent
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