Peniel Construction Limited (in liquidation) v Tuinukuafe

[2021] NZHC 1691

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2675

[2021] NZHC 1691

IN THE MATTER

of an application for a Sale Order under s 339 of the Property Law Act 2007

BETWEEN

PENIEL CONSTRUCTION LIMITED (IN LIQUIDATION)

First Applicant

AND

MALCOLM GRANT HOLLIS and

WENDY ANN SOMERVILLE as duly

appointed liquidators of PENIEL CONSTRUCTION LIMITED (IN LIQUIDATION)

Second Applicants

Continued

Hearing:	3 May 2021
Appearances:	E Anderson and E Learmonth for the Applicants G Sidnam and M Grayson for the Respondents
Judgment:	7 July 2021

JUDGMENT OF HINTON J

This judgment was delivered by me on 8 July 2021 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Norris Ward McKinnon, Hamilton Anderson Creagh Lai Limited, Auckland

PENIEL CONSTRUCTION LTD (IN LIQ) v HOLLIS AND ORS [2021] NZHC 1691 [8 July 2021]

AND              SAMUELA TUINUKUAFE

First Respondent

ANDGEORGE PINKHAM TUINUKUAFE, MANUKAFOA TUINUKUAFE and SOSAIA TUINUKUAFE

Second Respondents

[1]    The applicants have a judgment debt for just over $200,000 against the first respondent, Samuela Tuinukuafe. They registered a charging order over Samuela’s quarter share in a property at 69 Eskdale Road, Birkdale (the property). They now seek an order for sale under ss 339 and 342 of the Property Law Act 2007. Samuela is one of four brothers who are registered as owners of the property as tenants in common. The other registered owners are the second respondents, George, Manukafoa and Sosaia. There are six siblings in total – George is the oldest.

Procedural background

[2]    Samuela was the sole shareholder and director of the first applicant, Peniel Construction Ltd (PCL). PCL was placed into liquidation on 26 November 2015.

[3]    On 27 March 2017 the applicants obtained judgment by default in the District Court against Samuela for $202,153.40 owing by way of an overdrawn current account. The applicants say that the total amount owing by PCL to creditors is

$223,405 of which over $207,000 is owed to the Commissioner of Inland Revenue.

[4]    On 22 September 2017 the applicants registered a charging order over Samuela’s one-quarter registered interest in the property.

[5]    On 3 December 2018 the applicants applied for an order for sale. The application seeks that the proceeds be divided between the four respondents in equal one-quarter shares and the monies owed to the applicants be met out of Samuela’s share. The application was supported by affidavits from Wendy Somerville and Judith Shields both dated 29 November 2018:

(a)Ms Shields is a manager at PricewaterhouseCoopers (PWC). She details the contact she had with George Tuinukuafe in June 2018. She says he called her, declined to consent to a sale and said he would not let a sale occur.

(b)Ms Somerville is a liquidator who works for PWC. In her (first) affidavit, she sets out the orders sought and the basis on which they are sought.

[6]    The respondents filed a notice of opposition to the sale application and a (first) affidavit of George Tuinukuafe, both dated 5 April 2019. George’s affidavit explains that his parents bought the Birkdale property for the family and needed a mortgage to complete the purchase. He says that the bank required the four brothers with an income to “secure the loan” but that all six siblings “have a fair share of the property”. George also asserts that Samuela’s company went bankrupt after another company did not pay him and says this has broken up Samuela’s marriage and family of young children. He says they tried to refinance but were declined on account of their financial situations; that the family are planning to subdivide the property to pay off the debt and had previously agreed to sell if they had to.

[7]    On 25 March 2019, following a case management conference, Gordon J issued a Minute making timetable orders including a direction that a half-day hearing be scheduled after 5 April 2019.

[8]    The application for an order for sale was originally set down for hearing before me on 5 July 2019.   Prior to that date, the  applicants filed a  second affidavit by   Ms Somerville dated 13 June 2019. Ms Somerville states that the applicants will face hardship if a sale order is not made as the liquidators will be unable to distribute funds in accordance with the Companies Act 1993. She also says that due to the property’s physical characteristics, the respondents would be unlikely to get resource consent for subdivision and that they had done nothing to prepare the property for sale or subdivide it. Therefore a court order was necessary.

[9]    George appeared at the hearing on 5 July 2019, advising that as the oldest of the brothers he was representing them in the case. As I recorded in a Minute dated 8 July 2019, based on George’s April 2019 affidavit and what George had told me in Court, I considered there may be a good argument that the four brothers held the property in trust which, if upheld, could mean that Samuela had no legal interest in it, depending on the terms of the trust. I noted that even if Samuela had a separate legal interest there was no automatic order for sale, and pointed out various matters that would need to be considered. I advised George that he and his siblings needed legal representation, to which he said he had contacted a number of lawyers but not found anyone who would take on the case. To give George time to instruct a lawyer and

arrange for filing of further evidence I adjourned the application to a judicial telephone conference on Tuesday 6 August 2019.

[10]   By memorandum dated 2 August 2019 the solicitors for the applicants advised that they had written to George requesting access to the property for valuation purposes and that he had advised them he was waiting for a lawyer to contact him to represent the family in the case. At the applicants’ suggestion I rescheduled the telephone conference to 20 August 2019.

[11]   There were various further adjustments to the timetable and a further hearing was set down for 9 December 2019.

[12]   By the beginning of September 2019, Mr Sidnam had fortuitously agreed to represent the respondents. In early September the respondents filed three affidavits: a second affidavit by George sworn 5 September 2019, and affidavits by Sosefa sworn 5 September 2019 and Samuela sworn 6 September 2019:

(a)George’s second affidavit said that his parents bought the property in 1987 to live in during their lifetime and for their six children and future generations. Only four siblings were on the title because it was required by the bank. Even though only four of the siblings were on the title, it was always intended that all six would have a share in it. His father wanted to keep the house for the long-term benefit of the six children and future generations but if it had to be sold, the net proceeds would be shared by the six siblings equally. George said eight family members were residing there, only three with regular incomes (as cleaners and working in a hotel). Sale would cause significant hardship. George said he is on the sickness benefit. He would struggle to find stable work and accommodation. Samuela also did not have a regular job. Finally George said no-one else in the family was involved in PCL.

(b)Sosefa is the second oldest son. He is not on the title. He said he was only working part-time and studying at the University of Auckland when the property was purchased. He talked about the circumstances

of the purchase and that it was always understood the property was on trust for the benefit of the six siblings and their children. He said all members of the family had contributed to maintenance of the property since its purchase and contributed to mortgage payments and other costs including rates, power and daily expenses. Sosefa and his wife live and work in Wellington. He said that while he does not live at the property, it still holds significant value for him as the family home. He said his family would suffer extreme hardship if the property were sold as they would lose not only the sentimental value of the home, but also would struggle to find alternative accommodation.

(c)Samuela said he agrees with George’s second affidavit. He says his parents always intended the property to be passed down through the generations, as is common in Tonga. He said both his parents discussed this with him at different times. He said that as at September 2019 three of the six siblings live at the property. They have been unable to obtain finance to pay off his debts (which he claimed were overstated).

[13]   The applicants filed a third affidavit by Ms Somerville sworn 14 November 2019. She refers to various legal aid applications made by Samuela going back to 2008. The documents are confusing because there are references to another property formerly owned by Samuela with his ex-wife. In one place Samuela says he had a fifth share in a property with his father and brothers. In another he says he has a quarter share in a property and it is a joint family home. In another it appears he told the BNZ the property is his “parents’ home”. Overall, I do not consider anything can be taken from these documents. Ms Somerville also refers to a charging order issued by BNZ over Samuela’s share of the property, which was apparently subsequently discharged following repayment to the BNZ.

[14]   In around late 2019 Samuela filed an application to set aside the default judgment. This necessarily postponed the present application. On the application to set aside, Samuela argued that his true debt to PCL was a fraction of that recorded. He filed an affidavit in support of this application and Ms Somerville filed evidence in

reply. These affidavits are not germane to the present case. By judgment dated 10 December 2020 the District Court declined to set aside the default judgment.1

[15]   Following that judgment, by joint memorandum timetable orders were made for this application, leading to the hearing before me on 3 May 2021 to which this judgment relates.

[16]   It seems that at some point the original charging order lapsed and a further charging order dated 16 March 2021 was lodged with LINZ.

[17]   On 12 April 2021 the respondents filed a third affidavit by George Tuinukuafe. This detailed 10 family members then living at the property (George, Samuela, Akosita and her husband, Akosita’s daughter, Akosita’s son and his wife and child and two nephews who had temporarily moved in). Again it reinforces the hardship the respondents and occupants would face if the property were sold. George also attached a copy of a declaration of trust signed by the respondents on 6 April 2021. The declaration states that the registered owners have been holding the property on trust for their parents, the six siblings, their spouses, children and grandchildren.

[18]   On 30 April 2021 the applicants filed evidence of Google searches and a Barfoot & Thompson survey of average sale prices in Auckland.

[19]   During the hearing, I requested, without opposition from the applicants, that the respondents file a further affidavit clarifying who had lived at the property over the years.

[20]   George then filed a fourth affidavit dated 7 May 2021 in response to my direction, detailing the various occupants over the years. That information is referred to subsequently.

[21]   The applicants objected to this affidavit insofar as it exceeds the directions I made. I agree with the applicants that the respondents were limited to those matters that I directed and to which the applicants raised no objection. I decline to take in any

1      Peniel Construction Ltd (in liq) v Tuinukuafe [2020] NZDC 24660.

evidence beyond that expressly requested by me. Although I do not consider the extra evidence takes the matter any further, as the applicants submit, were I to allow evidence beyond my direction, they could potentially be prejudiced and might require either to file further evidence themselves or to cross-examine George.

[22]   Subject to the limited admissibility of George’s fourth affidavit, I have had regard to all of the affidavit evidence that has been filed. I note that no party gave notice for cross-examination at the hearing.

Factual background

[23]   There can be no dispute, and I do not take the applicants to contend otherwise, that it was the parents of the respondents who were the intended purchasers and the funders of the property. Sione Tuinukuafe came to New Zealand from Tonga in 1973. His wife Anaseini and their six children (all born in Tonga) followed progressively through to 1986. Samuela, who was one of the youngest, was born in 1963 so he is now about 58. Some of the older siblings must be in their 60’s. Sione and Anaseini had a dream of buying a house where they and their children could live. They were intent on the family not having to rely on the state. They both worked very hard in multiple jobs. By 1987 Sione and Anaseini had saved enough to pay a deposit and they found the property. However their lender, Southern Cross Building Society, wanted the property registered in the names of the four respondents all of whom were working full-time.

[24]   There are two other siblings who it seems were not working full-time in 1987, Sosefa and Akosita. As noted above, Sosefa was working part-time and studying at Auckland University when the property was purchased. The then circumstances of Akosita, the only daughter, are not known.

[25]   The evidence of the respondents is that the parents’ intention was for the property to be held on a long-term basis, at the least for the six siblings and at the widest also for the parents themselves, spouses, children and grandchildren. This wider form of ownership, the respondents say, was both the long-held wish of the parents and consistent with Tongan tradition.

[26]   Consistent with that asserted intention, the Tuinukuafe family have continuously lived at the property now for 33 years. This includes members of the wider Tuinukuafe family (that is beyond even the six siblings and their immediate families).

[27]   When the property was first purchased the parents and the six siblings all lived there. Two years later George got married and moved out into his own house. After that Manukafoa, Samuela and Sosaia all got married and moved into their own houses. Sosefa married in 1991 and moved to Dunedin with his wife to attend University there. When Akosita married she chose to remain living with the parents. The parents lived at the property until they passed away (Anaseini in 2010 and Sione in 2016).

[28]   It seems Akosita, her husband and their four children have continuously lived at the property, except that recently her two oldest boys, who are now married, have moved away.

[29]   At some point, and my impression is it was a few years ago, George , Samuela and members of Samuela’s extended family moved back into the property as a result of separations and falling on hard times.

[30]   At the present time the following 11 members of the family are residing at the property: Akosita, her husband, one daughter; George; Samuela, his son Sam Jr, Sam Jr’s wife Teina, their one-year old son Luxus; Samuela’s other son Joshua and two cousins from their mother’s side who are studying to be nurses.

[31]   In addition, over the years, both when the parents were still alive and after they passed away, the property has been used temporarily by families from the mother’s side and families from Latu, Akosita’s husband’s side, to establish themselves before they moved out on their own. This has included:

(a)while the parents were still alive, Susana Halalupe who stayed at the property until she was able to find a place to live with her family;

(b)Maeakafa Palu who stayed with the parents while working in New Zealand for six months;

(c)about eight years ago, ‘Aisea and Maa’imoa Tuitu’u stayed at the property, with their two young daughters Soana and Latai, while they found their own place to live;

(d)last year Manukafoa’s son Josiah also stayed at the property; and

(e)the two cousins who now live there, referred to above.

[32]   By June 2007, that is while both parents were still alive, the mortgage to Southern Cross was fully repaid and the property has been mortgage-free since then.

[33]   As noted, Sosefa says that over the years the whole family have contributed to maintenance, mortgage repayments, rates, power and daily expenses connected with the property. As Sosefa has himself not lived at the property since he was a young man I take his evidence to mean he has nonetheless continued to contribute in this way. It is unclear whether the parents continued to contribute after they paid the deposit but I infer they did, given the evidence of how hard they worked to provide for the children.

[34]   The property was valued as at March 2021 at $1,300,000. The purchase price in 1987/1988 was $108,000.

Relevant statutory provisions

[35]   The application for sale is made under ss 339 and 342 of the Property Law Act 2007 (the Act).

[36]   Section 339 of the Act gives the Court discretion to make orders for the sale or division of co-owned property. Section 341 provides that co-owners, a mortgagee and a person with a charging order over any property of a co-owner, can apply for sale or division. In exercising the discretion, the Court is required to have regard to the following considerations set out in s 342 of the Act:

(a)the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made;

(b)the nature and location of the property;

(c)the number of other co-owners and the extent of their shares;

(d)the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order;

(e)the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property; and

(f)any other matters the Court considers relevant.

Discussion

[37]Two questions arise:

(a)Is Samuela the true equitable owner of a one-quarter share, or of any identifiable share in the property?

(b)If so, should the discretion provided by s 339 of the Act be exercised in favour of the applicants?

Equitable ownership

[38]   The respondents, being the four registered owners, say that they hold the property in trust for the wider family. As noted they have signed a declaration of trust to that effect.

[39]The applicants say there is no trust.

[40]   They say the deposit paid by the parents can be better understood as a gift from the parents to the four children, relying on the presumption of advancement.2

[41]   The applicants contend it is fundamental to trust law that trustees are registered as joint tenants not tenants in common and also that it is a significant hurdle to displace the form of registration.3 The applicants say this is particularly the case where the respondents are tenants in common which requires a specific decision at the time of registration.

[42]   The applicants also submit that of the three certainties required for a trust, the only one of which I can be satisfied is certainty of subject matter, namely that the subject of the trust would be the Birkdale property.

[43]   Finally, the applicants point to s 49A of the Property Law Act 1952, which has since been replaced but was in force at the time the property was acquired. It provides that a trust regarding any interest in land must be in writing signed by a person able to declare such a trust.

[44]   Addressing these arguments, I note this case is materially different to those relied on by the applicants, in that here the registered owners themselves are all in agreement that they hold the property on trust. They have gone so far as to all sign the 2021 declaration of trust. The cases relied on by the applicants involve disputes between registered owners and others claiming to be beneficially entitled.

[45]   As to the presumption of advancement I consider it displaced. There is nothing to suggest the parents gifted the deposit. Rather the lender specified the form of ownership. I consider it most unlikely that the parents would have gifted what was presumably a substantial sum to four children, excluding the second oldest son and their only daughter. The presumption of advancement does not apply here, nor would it rule out the trust argument even if it did.

2      Holster v Grafton (2008) 9 NZCPR 314.

3      Cossey v Bach [1992] 3 NZLR 612.

[46]   I accept that there is a burden on the respondents, but I am satisfied that in this case the form of registration is displaced. The four brothers must have been registered as owners as representatives for the wider family, which in my view would have been at least the parents and the six siblings. At the point of registration, it is clear that none of the four brothers had made any payment at all towards the purchase and none of them was even intending to buy a property. The property was put in their names at the instigation of the lender. Any notion that they would, for example, have been able to agree between themselves that they would sell the property shortly afterwards and divide the proceeds, would clearly be wrong. That would plainly not have been in anyone’s contemplation. The same would necessarily apply today.

[47]   I also accept it was the parents’ wish that the property be there for the family long-term. There is no reason to distinguish between the four brothers and their other two siblings. Further, I have no doubt it was always intended that any of the family members who wanted to live there could do so and that they would make contributions accordingly. That is in fact what has happened.

[48]   While in places the respondents talk as if the arrangement was that just the six siblings were to be equal owners, that is not the overall thrust of their evidence, nor of the argument made on their behalf. They say the beneficial owners also include their parents, children, spouses and grandchildren. I agree that may well be so but at the least I consider the equitable owners were the six siblings and their parents.

[49]   I appreciate that there is no documentary evidence of the parents’ wishes, for example from the conveyancing file on the purchase. But that was 34 years ago. I have no doubt the file no longer exists and I very much doubt it would be helpful if it did. Also, this is not a case where there is competing evidence. Rather, the respondents are being put to the proof and I am satisfied by the evidence they have provided. I also note that George made the point as to wider ownership at the outset, unprompted, and without the benefit of legal advice.

[50]   Ms Anderson points to the fact that the respondents were prepared to consider selling the property, suggesting that shows they are the true owners, but I do not consider that to be a fair submission. To begin with George made it clear they would

not agree to a sale. It was only because of the forced position in which they found themselves that they gave consideration to a subdivision and sale of the “excess” land, or if they had to and were allowed time, to a sale. That was rejected. Early discussions were also in the absence of any legal advice and, as the applicants themselves say, a subdivision was not feasible. Apart from in the context of the present application, there is no suggestion that anyone ever considered or would consider a sale. To the contrary, as noted, the family have lived in the property for a very long time and members of the family who have not had any use of the property for a long time have been quite content to leave matters that way and even to contribute to the outgoings. This is not the way people would behave who considered themselves to have fixed ownership rights. For that matter, the three siblings who are not benefitting from use of the property might have been expected to seize the opportunity this case presents to quietly support a sale or at least take a neutral position. But none has. In my view the family’s conduct has been strongly consistent with broader based ownership.

[51]   Similarly I do not take anything from the BNZ and Legal Aid Committee registering charging orders over Samuela’s “interest”. That is either a necessity or an imposition and does not alter the fundamentals of the argument here.

[52]   I do not consider the now repealed s 49A of the Property Law Act 1952 to be applicable. That section would apply only in the case of disputes between competing property interests. It is not a provision that can be invoked by the applicants. In any event, s 49A did not require a trust to be created in writing; all that was required was that there be some writing that was evidence of the creation of the trust.4 Accordingly, if a trust was created verbally but was later reduced to writing the trust took effect from the date of the oral declaration.5 Secondly, notwithstanding the clear language of s 49A(1), the required writing could be signed by the trustee rather than the settlor.6 As noted, the four respondent brothers signed a declaration of trust on 6 April 2021 recording that they hold the property for all six siblings, their spouses and children. That would be sufficient to satisfy the requirement for written evidence of the trust if that is in fact required.

4      Team Barry Ltd v Forlong HC Auckland CIV-2003-404-5393, 28 April 2005.

5      Forster v Hale (1798) 3 Ves 696; 30 ER 1226.

6      Mountain v Styak [1922] NZLR 131.

[53]   It is not necessary or appropriate for me to make any determination as to the actual terms of a trust. A number of those affected or potentially affected are not parties to this proceeding. It suffices for me to hold, as I do, that I am satisfied that Samuela is not the true equitable owner of a one-quarter interest in the property but he, along with his three brothers, is holding the property in trust for family members including at least all six siblings and the parents’ estates. I am satisfied as to the intention of the settlors and satisfied as to the subject matter. I am sufficiently satisfied as to the objects of the trust, namely that they are at least within the category of those recited in the declaration of trust.

[54]   In the absence of evidence as to the parents’ testamentary arrangements, I proceed on the basis most favourable to the applicants, namely that Samuela has a one- sixth ownership interest in the property.

Should the discretion provided by s 339 be exercised in favour of the applicants?

[55]A one-sixth share in the property is a minor interest.

[56]   This is not, as is the usual case, an application by a co-owner. It is an application pursuant to a charging order. All six of the co-owners are opposed to a sale, although I ignore for this purpose Samuela’s opposition.

[57]   The family have owned and lived in the house in Birkdale for 33 years now. Although now worth over $1 million, it is a humble property by Auckland standards. The family have a real attachment to the home. It is part of their heritage.  There are a large number of family members living there including three of the siblings, and there has been a large number for some years. There would be considerable hardship to the wider family to be uprooted from their home and from the place they gather. I very much doubt that they would be able to buy a suitable replacement home to house such a large number of people in the same area or anywhere nearby for five-sixths of the net sale proceeds.7 The respondents do not have the means to fund the costs involved in upheaval or to obtain finance.

7      A Barfoot & Thompson report provided by the applicants indicated their average sale price for a three bedroom home in Birkdale was $944,000 but it was unclear over what period, so as the

[58]   In any event, I do not see why five out of six siblings, their spouses and children and others to be born, should be punished (which they would be just by a sale), and a number of them uprooted and disadvantaged for the debt of just one of them. It is not as if any of them had any part in PCL, nor in incurring of the debt. They are entirely innocent parties.

[59]   It is also not a case where the debt that is the judgment sum has any connection to the property. The creditors of PCL would most likely have had no idea of Samuela’s registered interest at the time the debt owed to them was incurred.

[60]   Even more importantly, while Samuela will have presumably contributed to outgoings, his siblings will have done the same, some without having the benefit of occupancy, and none has contributed to the purchase of the property in a manner proportionate to their share in it. The key contributors, without whom the property would not be available, were their parents. If Samuela himself was seeking an order for sale it would fail in the circumstances prevailing here.

[61]   The applicants rely on a decision of mine in Sillick v Sillick which they say illustrates that even where the Court considers a property to be similar to a tūrangawaewae, the Court will order a sale.8 That is not a fair representation of Sillick which in other respects was a very different case to the present. Sillick was an application for sale by one of three beneficiaries of an aunt’s estate. I made every allowance to the respondents because of the heritage issue but the sole asset of the estate was a very modest house in Kaitaia; the property was deteriorating significantly; significant expenses were accruing; the only person contributing to outgoings was the applicant and the only person using and benefiting from the property was one of the other beneficiaries who was entirely uncooperative. The merits were clearly weighted in favour of the sale in the absence of any ability to broker a lateral solution.

[62]   In Phillipps v Phillipps, another case relied on by the applicants, the Judge made an order for sale of a property.9 In that instance two out of three registered

applicants accepted that material was inconclusive. The applicants suggested the respondents could move to Warkworth.

8      Sillick v Sillick [2020] NZHC 282.

9      Phillipps v Phillipps [2019] NZHC 15.

owners wanted to sell. The third (Lorna) was living in the property and had been preventing the sale. She was in receipt of a benefit and had six children living with her. The Judge found that hardship to the other sibling co-owners outweighed that to Lorna. She would suffer due to having to find other accommodation, but this would be reduced as she could use sale proceeds to achieve this. The other siblings had made no financial gain from the property for two and half years, the property was run-down, and deteriorating further as Lorna was not maintaining it. Again that case is clearly distinguishable from the present – it was a dispute between two parties, who together owned more than half of the property, and the third owner, who was being unfairly advantaged.

[63]   The present case is much closer to that of Walker v Walker, in fact the argument against a sale is stronger here.10 The Judge in Walker refused to use their discretion to order sale of a property, saying:

[51] Weighing all the factors in the present case, I am of the opinion that the Court should not exercise its discretion to order a sale of the land. The land can rightly be described as the ancestral land of the Walker family. The plaintiffs did not purchase their share but inherited it from their father. There is no evidence they have ever lived on the land or contributed to improvements to, or the maintenance, of the land. The plaintiffs' shares amount to one-third of the beneficial interest in the land, a minority interest. Any sale is vehemently opposed by the owners of two-thirds of the beneficial interest in the land, a majority interest.

[64]   I am conscious of the applicants’ evidence that they have no other means of recovering the judgment debt but that does not come close to outweighing the matters referred to above. I also note that the company’s principal creditor is the Commissioner of Inland Revenue, not struggling tradespeople.

[65]   Weighing all of these factors I conclude that my discretion should be exercised firmly against the application for an order for sale.

Conclusion

[66]For the above reasons the application for sale and division is dismissed.

10     Walker v Walker [2012] NZHC 543.

[67]   Both parties were agreed that costs should apply on a 2B basis. I make an order for costs in favour of the respondents, to apply only from the date following the first Court hearing before me on 5 July 2019, after which the respondents were legally represented.

[68]   All of the Tuinukuafe family should be grateful to George for his ongoing and courteous endeavours on their behalf and to Mr Sidnam for accepting instructions as counsel. Had George and Mr Sidnam not taken the steps they did, there was a real risk of the Court not being apprised of the true position, and an order for sale being made by default.

Hinton J