Petherick v Petherick HC Wellington CIV-2009-485-1517

[2011] NZHC 1961

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-1517

BETWEEN  ALEXA PATRICIA PETHERICK Applicant

ANDSTEPHEN GRANT PETHERICK Respondent

Hearing:         6 December 2011 (Heard at Wellington)

Counsel:         M.L. Greenhough - Counsel for Applicant

J.J. Delany - Counsel for Respondent

Judgment:      6 December 2011

DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Macalister Mazengarb, Solicitors, PO Box 927, Wellington

BA Gibson, Solicitor, PO Box 927, Wellington

AP PETHERICK V SG PETHERICK HC WN CIV-2009-485-1517 6 December 2011

Introduction

[1]      I gave a judgment in this matter dated 21 June 2011 which dealt in part with calculation of occupation rental for the former matrimonial home owned by the parties or their trusts.

[2]      Counsel  have  now  by  way  of  joint  memorandum  filed  4  August  2011 requested clarification of certain findings in that judgment.

[3]      The issue which has arisen relates to occupation rental for the family home which was awarded to the applicant or her interests from the ultimate sale proceeds of the property for the period that the respondent Mr Petherick occupied the property personally or had the right to do so – para [24] of my judgment.

[4]      Questions  were  raised  regarding  the  correct  interpretation  of  part  of  the orders relating to this rental in my judgment. A sum of $10,000.00 has been retained by Collins & May solicitors from the sale proceeds and is held in the trust account pending my ruling on this matter.

[5]      I  apologise  to  counsel  for  the  delay  in  providing  this  ruling.     The Memorandum from counsel filed in this Court on 4 August 2011 unfortunately for an unexplained reason had not been referred to me and I saw it for the first time today.

[6]      Having now considered that Memorandum and having discussed matters with counsel for both parties (and noting also that Mr Delany has no instructions and therefore does not oppose the direction sought here by Ms Greenhough counsel for the applicant) I now direct that from the $10,000.00 retained in Collins & May’s trust account, the applicant Ms Petherick is entitled to an amount for occupation rental of the property at the rate set out at para [24] of my judgment for the entire period of 108 weeks from the date Mr Petherick started to occupy the property personally up to the date of final settlement of the sale of the property which I understand was 26 August 2010. A direction to this effect is now made.

[7]      Leave is reserved for any party to approach the Court further if any further directions or clarification may be required.

‘Associate Judge D.I. Gendall’