R v Galloway HC Wellington CRI 2009-078-824

[2010] NZHC 1416

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2009-419-136

BETWEEN  GEORGINA MARY TOKLEY SUING IN HER OWN RIGHT AND IN HER CAPACITY AS SOLE EXECUTOR OF THE ESTATE OF FREDERICK JAMES TOKLEY

Plaintiff

ANDCHRISTOPHER MICHAEL LLOYD ROBINSON

First Defendant

ANDJAYNE ROBINSON Second Defendant

Hearing:         12 August 2010

Appearances: Mr W C Pyke for plaintiffs

Ms T Homes for first defendant

Judgment:      12 August 2010

(ORAL) JUDGMENT OF LANG J

[on application to rescind interim charging order]

Solicitors:

Norris Ward McKinnon, Hamilton
Mr W C Pyke, Hamilton

Vallant Hooker & Partners, Auckland

TOKLEY V ROBINSON AND ANOR HC HAM CIV-2009-419-136  12 August 2010

[1]      In this proceeding Mrs Tokley seeks repayment of the sum of $280,000 from the defendants.  She claims that she and her late husband, in respect of whose estate she is the executor, advanced the funds to their daughter, the second defendant, and her then husband, the first defendant, in order to enable them to purchase a property in Ngaruawahia.

[2]      Ms Robinson, the second defendant, signed an admission of liability and judgment has now been entered against her. Mr Robinson, the first defendant, denies liability and the plaintiff’s claim against him is due to be heard in this Court on 6

September 2010.

[3]      Immediately after the plaintiff obtained judgment against Ms Robinson, she obtained an interim charging order over monies held to the joint credit of the two defendants in a solicitor’s trust account.   Those monies comprise the net balance remaining after the sale of the Ngaruawahia property by a mortgagee.   The funds will eventually be distributed in accordance with directions to be given in a proceeding that is currently before the Family Court.

[4]      Mr Robinson has now applied for an order rescinding the charging order on the basis that the Court had no jurisdiction to make it in the first place.  His argument is that the monies are jointly owned and that there is no jurisdiction to make a charging order until such time as Ms Robinson’s precise interest in the monies, if any, has been quantified.

[5]      That argument cannot be sustained.  The property was jointly owned by Mr Robinson and his then wife.  As a result, both defendants remain the joint owners of the proceeds of sale.   This is sufficient, in my view, to establish that the second defendant has an interest in the monies.  The fact that a concurrent proceeding in the Family Court  may determine the precise shares  in  which  the  monies  are  to  be distributed does not affect that basic proposition.

[6]      I  do  not  accept,  either,  the  argument  that  Mr  Robinson  is  prejudicially affected by the existence of the charging order.  The charging order charges only the interest of his former wife in the monies.  It does not purport to charge any interest

that he might have in them.  If the Family Court determines that he is entitled to all of the monies, those monies will pass to him free of any encumbrance.  If the Family Court finds, however, that Ms Robinson is entitled to some of the monies, then only that proportion of the fund will be charged in favour of the plaintiff.

[7]      Whatever the outcome in the Family Court, Mr Robinson’s interests remain fully protected and cannot be prejudiced in any way by the existence of the charging order.

[8]      For these reasons the application is dismissed.

Costs

[9]      The plaintiff has succeeded in relation to the application and is therefore entitled to costs.   The plaintiff is legally aided and her counsel indicates that, in opposing the application, his actual costs are likely to be less than scale 2B costs. For that reason I direct that the plaintiff is to have costs.   Those costs are to be calculated either on a Category 2B basis or upon the actual cost of opposing the application calculated at legal aid rates, whichever is the lesser.  The plaintiff is also entitled to any disbursements associated with the application.

Trial preparation

[10]     Counsel advise me that matters appear to be on track for trial.   There is, however, some slippage in relation to the provision of the draft bundle.   If any difficulty arises in relation to this issue, counsel for the plaintiff should file a bundle on behalf of the plaintiff and then leave it to the defendants to do likewise.  Clearly, however, it would be preferable for a single bundle of documents to be prepared for trial.  I would therefore ask counsel for Mr Robinson to ensure that he co-operates with counsel for the plaintiff in preparing the bundle.

[11]     Should any issue arise that threatens to disrupt preparation for the trial, I grant  leave  for  counsel  to  ask  the Registrar to  arrange an  immediate  telephone conference with Rodney Hansen J, who will be the trial Judge.

Lang J