Official Assignee v Peachey - [2018] NZHC 1949

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-428

[2018] NZHC 1949

UNDER Sub-pt 5 of pt 6 of the Property Law Act 2007

BETWEEN

THE OFFICIAL ASSIGNEE IN BANKRUPTCY IN THE ESTATE OF MARK ESDOT

Plaintiff

AND

COLLEEN ANNE LILA PEACHEY

Defendant

Hearing: 31 July 2018

Appearances:

D Kerr for the plaintiff

Minute:

1 August 2018

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] On 5 June 2018 the plaintiff commenced this proceeding by notice of proceeding and statement of claim. The originating documentation was filed and served together with a notice of application for summary judgment and an affidavit sworn by Florestina Fagasoaia-Mead who is a deputy Official Assignee at Wellington and has responsibility for this bankrupt estate.

[2] There is proof of service for all of the above documentation on the file. It has been served on the defendant, the Bank of New Zealand which is the mortgagee of the property and the Legal Services Commissioner who has caveated the title to the property. None of those parties have taken any step in the proceeding. In particular the defendant has not filed a notice of opposition to the plaintiff’s application for summary judgment.
THE OFFICIAL ASSIGNEE IN BANKRUPTCY IN THE ESTATE OF MARK ESDOT v PEACHEY [2018] NZHC 1949 [1 August 2018]

[3]The matter was called in the Wellington commercial list yesterday.

[4] The defendant having taken no steps in the matter, I indicated to Mr Kerr, counsel for the plaintiff, that I would enter summary judgment by default for the plaintiff and that I would provide reasons in a written decision. I now do so.

[5] The Official Assignee seeks orders which will enable him to sell the property at 17 Bythell Street in Wainuiomata registered in the names of the bankrupt and the defendant.

[6] Upon Mr Esdot’s adjudication in bankruptcy in this Court on 1 December 2015 the Official Assignee of course assumed his interest in the property. The adjudication also operated to sever the joint tenancy.

[7] The evidence is that the Official Assignee has attempted to resolve matters with Mr Esdot and the defendant but thus far to no avail. I accept that the Official Assignee now has no option but to take steps to exercise her rights.

[8] There is ample precedent for the use of the summary judgment process contained in pt 12 of the High Court Rules to obtain orders pursuant to the Property Law Act (see McCleary v Prasad and Prasad [2012] NZHC 2151 per Associate Judge Bell) and I note that the orders sought by the Official Assignee in this case are modelled on those approved in Official Assignee v Faresa (unreported), High Court, Auckland, Winkelman J, 13 February 2008.

[9] In a memorandum filed prior to the hearing by Mr Kerr helpfully sets out the matters to which the Court must have regard before making the orders sought. These are set out in s 442 of the Property…

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 Peachey

Details

AGLC: Official Assignee v Peachey [2018] NZHC 1949
Case: [2018] NZHC 1949
Decision Date: 1 August 2018

CaseChat Overview and Summary

In the case of Official Assignee v Peachey, the Official Assignee in the estate of Mark Esdot initiated proceedings against Colleen Anne Lila Peachey, seeking orders to facilitate the sale of a property located at 17 Bythell Street in Wainuiomata, which was registered in the names of the bankrupt, Mark Esdot, and the defendant. The Official Assignee, represented by D Kerr, filed a notice of application for summary judgment along with an affidavit from Florestina Fagasoaia-Mead, a deputy Official Assignee. The defendant did not oppose the application, leading to the court considering the matter under the summary judgment process.

The primary legal issue before the court was whether the Official Assignee was entitled to summary judgment and the appropriate orders to sell the property. The court had to consider the factors outlined in section 442 of the Property Law Act, including the extent of the Official Assignee’s share, the nature and location of the property, the hardship that refusal or grant of the application would cause, and the value of any contributions to improvements or maintenance. The court found that all these factors supported the Official Assignee's application, especially considering the positions of the Bank of New Zealand and the Legal Services Commissioner.

Associate Judge Johnston granted the summary judgment in favor of the Official Assignee, issuing orders for the property to be sold under the Official Assignee's control. These orders included the appointment of a real estate agent, determination of marketing and selling methods, and setting of asking prices. The defendant was required to maintain the property and provide access for viewing, with an obligation to vacate the premises within 30 days of a sale agreement. The proceeds from the sale were to be disbursed in a specific order, with the Official Assignee entitled to costs against the defendant. The orders were stayed for 14 days to allow the defendant an opportunity to acquire the Official Assignee's interest in the property.

Orders