Official Assignee v Parker

[2013] NZHC 205

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2009-454-938 [2013] NZHC 205

IN THE MATTER OF     an application under section 339 of the

Property Law Act 2007

BETWEEN  OFFICIAL ASSIGNEE Plaintiff

ANDLANA HIRANA PARKER Defendant

Hearing:         14 Febraury 2013

(Heard at Palmerston North)

Counsel:         J. Flynn - Counsel for Plaintiff

T.C. Montague - Counsel for Defendant

Judgment:      15 February 2013

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 12.30 pm on 15 February  2013.

Solicitors:           Elvidge & Partners, Solicitors, PO Box 609, Napier 4140

Todd Whitehouse, Solicitors, PO Box 34, Levin

OFFICIAL ASSIGNEE V LH PARKER HC PMN CIV-2009-454-938 [15 February 2013]

Introduction

[1]      This is an application by the plaintiff for further and alternative directions regarding the sale of a property following earlier sale orders made by this Court on

31 March 2011.

[2]      The application is brought by the Official Assignee as plaintiff.  It is opposed by the defendant.

Background Facts

[3]      ON 22 April 2010 this Court ordered, pursuant to ss 339 and 343 of the Property Law Act 2007, that properties at 3 and 4 Walnut Grove, Levin and 14A The Avenue, Levin were to be sold, with counsel for the plaintiff and counsel for the defendants to agree to the terms of sale.

[4]      Subsequent arrangements outlining the conditions of sale were agreed to and recorded in consent orders of this Court on 2 December 2010.

[5]      On 31 March 2011 the High Court by consent varied those orders specifically in the following way:

(a)        The properties at:

(i)          41 The Avenue, Levin being all the land comprised and described in Certificate of Title 332765 (the property); and

(ii)         3 and 4 Walnut Grove, being all the land comprised and described in Certificates of Title WN40B/217 and WN40B/218

are to be auctioned.

(b)        “Harcourts” at Levin as instructed by the plaintiff is to market and sell the

properties and conduct the auction;

(c)         The reserve sale price for the auction shall be the midway point between the two valuations obtained by the plaintiff and the defendant, namely:

(i)         41 The Avenue (the property) - $205,000.00; (ii)          3 and 4 Walnut Grove - $295,000.00.

(d)        The plaintiff will meet the costs of and incidental to the auction process.

(e)       The defendant shall reasonably co-operate with the duly appointed real estate agent and grant access to the properties for the purpose of showing them to prospective purchasers between the hours of 9.00 am to 5.00 pm Monday to Sunday or otherwise by appointment so long as reasonable advance notice is given by the Real Estate Agency.  “Reasonable Advance Notice” shall mean not less than notice given 24 hours in advance of exercising access to the properties by the real estate agent and prospective purchasers.

(f)         The defendant will provide a key to the duly appointed real estate agent.

(g)       The plaintiff will attend to the conveyancing and the mechanics of any sale of the properties.

(h)       Each party will be responsible for their own costs of and incidental to any conveyancing.

(i)        If the reserve price is not met then the plaintiff and the defendant will enter into negotiation with the highest bidder if any.

(j)        If at the conclusion of negotiations the plaintiff and the defendant are unable to reach an agreement as to sale price, either party may apply to the Court for further directions.

(k)       Failure of the defendant to comply with the above orders, including being unreasonably unco-operative with any duly appointed Real Estate Agent may result in further proceedings being taken by the plaintiff against the defendant including an order for costs against the defendant.

[6]      On 22 July 2011 the property at Walnut Grove was sold.

[7]      The other property at 41 The Avenue, Levin (the property) has been on the market since that date, but remains unsold.

[8]      This proceeding was last called in this Court on 29 November 2012.  Since that time counsel advise an offer has been made for the purchase of the property for

$85,000.00.    Then,  the  plaintiff  apparently  proposed  making  a  counter  offer  at

$100,000.00.    The  defendant,  however,  did  not  agree  and  counter  offered  at

$190,000.00.  The negotiations with the purchaser terminated shortly after.

[9]      The plaintiff now suggests that, based on what has occurred to date, there is unlikely to be any agreement between the parties as to what price the property ought to be sold for.   As noted at  [5](c)(i) above, originally the orders of this Court specified that any reserve for the property at auction would be the mid-point between the two valuations obtained by the plaintiff and the defendant, namely $205,000.00.

[10]     The plaintiff now submits however that the real market value of the property is significantly lower than that reserve price.  It is suggested the real market value should be determined on the basis that for some time the only real offer that had been made for the property was $85,000.00.

[11]     The plaintiff now seeks further directions as provided for by para [J] of the

31 March 2011 orders made in this Court noted at para [5] above.  In particular, the plaintiff suggests that the orders should now be substantially varied pursuant to s 339 and 343 of the Property Law Act 2007 as follows:

(a)       The property at 41 The Avenue, Levin being all the land comprised and described in Certificate of Title 332765 is to be auctioned.

(b)       The plaintiff shall instruct a real estate agent to market and sell the property and conduct the auction;

(c)       The reserve sale price shall be determined by the plaintiff after consultation with the defendant;

(d)       The costs of and incidental to the auction process shared be shared equally between the parties.

(e)       The defendant shall reasonably co-operate with the duly appointed real estate agent and grant access to the property for the purpose of showing it to  prospective  purchasers  between  the  hours  of  9.00  am  to  5.00  pm Monday to Sunday or otherwise by appointment so long as reasonable advance notice is given by the Real Estate Agency.  “Reasonable Advance Notice” shall mean not less notice given 24 hours in advance of exercising access to the properties by the real estate agent and prospective purchasers.

(f)         The defendant will provide a key to the duly appointed real estate agent.

(g)       The plaintiff will attend to conveyancing and the mechanics of any sale of the property.

(h)       Each party will be responsible for their own costs of and incidental to any conveyancing.

(i)        If the reserve price is not met then the plaintiff, after consultation with the defendant, will enter into negotiation with the highest bidder if any.

(j)        The  plaintiff  may  accept  an  offer  for  purchase  of  the  property  after consultation with the defendant.

(k)       Either party may apply to the Court for further directions if the property remains unsold.

(l)        Failure of the defendant to comply with the above orders, including being unreasonably unco-operative (sic) with the duly appointed real estate agent may result in further proceedings being taken by the plaintiff against the defendant including an order for costs against the defendant.

[12]     In response, the defendant at this point opposes any variation to the earlier orders made by this Court.  The defendant’s position, as I understand it, is that she maintains she has co-operated with the sale process throughout and has not been in any way obstructive.  She submits however that the appropriate course of action now in so far as the asking price for the property is concerned is to obtain an updated market valuation from a registered valuer and for the property to be marketed at that recommended figure.  The other terms of the original 31 March 2011 consent order she contends, as I understand her arguments, should simply remain.

[13]     In my view there is some merit in this suggestion by the defendant so far as a reduced listing price for the property is concerned.

[14]     The property is owned jointly by the plaintiff and the defendant.

[15]     Clearly any nominated  sale price therefore has an impact upon  both the plaintiff as the assignee of the bankrupt Mr Michael Kevin Parker’s estate and the defendant and her interests.

[16]     I am of the view therefore that, given what seems to be a fall in the market for properties of this type in the Levin region, it is appropriate now for an updated registered valuation to  be obtained  to assist in  setting a new sale price for the property.

[17]     That said, a direction is to follow concerning this aspect.

[18]     So far as the plaintiff’s present complaint as to a lack of co-operation (and indeed a degree of obstructiveness) by the defendant in the sale proceeds is concerned, there is no unequivocal evidence before me of this.  What is clear is that the property, despite being on the market for some time, has been the subject of only one purchase offer.   This does not necessarily mean, however, that this state of affairs has resulted from obstructive behaviour on the part of the defendant.

[19]     In my view the earlier orders for the sale of this property dated December

2011 might still adequately deal with this aspect and the sale process generally.

Alternatively, some fresh approach to a sale might be required with new directions made.  These are matters as I see it which should be the subject of further sensible discussion between the parties and their counsel and failing agreement on a fresh sale approach, they may be properly referred to this Court for decision.

[20]     I now grant leave to either party to come back to the Court on 48 hours notice if additional directions and orders in this matter are required.  This hopefully will not be required but will enable the Court to deal with any further impasse which might occur later.

Conclusion

[21]     For the reasons outlined above I now make an order that the parties are to have 5 working days from today 15 February 2013 to agree on the identity of a registered valuer to conduct a new valuation of the property (failing which this is to be determined by the President or Senior Officer of the Manawatu Branch of the New Zealand Law Society).   That valuer is then to be appointed to provide an updated registered valuation of the property (at a cost shared equally by the plaintiff and the defendant) and recommendations as to a listing and reserve price for a new possible sale or auction of the property.

[22]     Costs on the present application are reserved.

[23]     To monitor progress in this matter and to consider any further sale directions that may be required, this proceeding is to be the subject of a call in the List at 10.00 am on 14 March 2013.

‘Associate Judge D.I. Gendall’