Rio v Haturini

[2021] NZHC 3217

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-463-9

[2021] NZHC 3217

UNDER

Part 12 and 13 of the High Court Rules 2016 and Part 6, subpart 5 of the Property Law Act 2007

IN THE MATTER

of summary proceedings for recovery and sale of land and occupation rent

BETWEEN

LUCY MARGARET RIO, JADE KELLY KAHURANGI OSBORNE and ASHLEY HINEWAI GEORGINA OSBORNE

Plaintiffs

AND

EVELYN HATURINI and NEPIA HAMIORA HATURINI

First Defendants

EDNA OSBORNE

Second Defendant

Hearing:

10 November 2021

Appearances:

N Bradley for Plaintiffs

E Haturini and N Haturini First Defendants in person No appearance for Second Defendant

Judgment:

29 November 2021

JUDGMENT OF MUIR J

This judgment is delivered by me on 29 November 2021 at 11:00am pursuant to r 11.5 of the High Court Rules.

Solicitors:

Robinson Law, Whakatāne And to:

Ms E and Mr N Haturini

Copy to:            Ms E Osborne

.....................................................

Registrar / Deputy Registrar

RIO v HATURINI [2021] NZHC 3217 [29 November 2021]

Introduction

[1]    This is an application under s 339 of the Property Law Act 2007 (the Act) for an order for sale of a property in Tāneatua. The five owners of the property are all relatives. Each received their share of the property under the will of their (respectively) mother, grandmother or great grandmother. Three of the five (the plaintiffs) wish to go their separate ways after a long period of family disharmony. Two of the five wish the house retained.

Background

[2]    The late Valerie Hape (Valerie) was the owner of a modest 90 square metre home in Tāneatua. Current online estimates of value are in the order of $225,000 to

$250,000. Valerie died a little over 10 years ago.1

[3]    By her will dated 21 May 2002 (the Will), she left the Tāneatua house in equal shares to her daughter Lucy Rio (Lucy), Lucy’s two daughters and co-plaintiffs, Jade and Ashley Osborne (Jade and Ashley) and to a grand-daughter, the first-named first defendant Evelyn Haturini (Evelyn) and her son, Nepia Haturini (Nepia). Nepia was, at the time of Valerie’s death, about 10 years old. The gift was expressed to be to such of the named parties as “survive me and attain the age of 20 years and if more than one as tenants in common in equal shares”. Lucy was appointed sole executor and trustee. The property remains in her name at this time pending Nepia’s imminent 20th birthday.

[4]    In the years since Valerie’s death various family members have lived in the house including initially Lucy, her husband and their children. They undertook significant renovations including new carpet, fencing, front deck, joinery replacement and installation of an HRV system. Later, after Lucy indicated a desire to move to Australia, the house was occupied by others including latterly her sister Edna, Edna’s partner and various of Edna’s immediate family members. Initially they paid an agreed rent of $250 per week to the estate.

1      Date of death: 27 March 2011.

[5]    Subsequently Edna’s daughter moved into a sleepout on the property. Lucy considered that an additional rental of $120 should be paid so that services to the sleepout could be upgraded. This caused significant friction between the sisters with exchanges of mutually disparaging texts.

[6]    On 2 September 2020 Lucy purported to terminate Edna’s rights of occupation. Shortly afterwards Edna ceased paying rent and has not done so since, although Evelyn says she has paid some outgoings. This cessation of payment was with Evelyn’s encouragement. On 2 October 2020 Lucy purported to trespass Edna from the property. A physical altercation has since occurred involving Lucy and one of Edna’s relatives. The relationship is now toxic.

[7]    Lucy therefore now seeks a sale of the property and disposition of the sale proceeds in equal shares among the five beneficiaries. She does so with the support of her daughters. She claims that the emotional and financial costs of ownership can no longer be borne by her. Many tears were shed in the witness box.

[8]    Evelyn holds no animus towards any of her relatives. Her text exchanges indicate an overriding desire to see Lucy and Edna reconciled. She opposes a sale of the property however because she regards it as her tūrangawaewae. She says that her “Nan”, Valerie, “took me home from the maternity when I was born and I have lived in there most of my life. Till I got older and then I moved out when I had kids”. She says that Edna intends to leave the property in February 2022 (having purchased her own) and that at that point, she, Evelyn, would like to return from Gisborne to Tāneatua and herself occupy the home. She would do so with her partner, whom she acknowledges is a patched member of the Mongrel Mob, and her children (other than Nepia who is himself now a father and is establishing his own life).

[9]    She says that it was not her Nan’s intention that the property should ever be sold. This claim derives some support from the Will which includes the following provision immediately after the gift of the Tāneatua property:

The reason I have not included any of my other children as beneficiaries of the gift contained in this clause is that my other children all live out of the local area and have no wish to make Taneatua their home. My daughter Lucy lives locally and she has been very supportive of me over the years. My

granddaughter Evelyn and her son (my great-grandson Nepia) live at home with me while my granddaughters Ashley and Jade spend time at home with me during school holidays.

[10]   With this all too familiar background, the Court is asked to exercise its discretion under s 339 of the Act.

[11]   As against Edna, the plaintiffs also seek an order for possession under pt 13 of the High Court Rules 2016 and payment of an “occupational rent” at the rate of $250 per week for the period from 2 October 20202 (when payment was discontinued) down to the date of hearing.3 The latter is sought in reliance on s 343(f) of the Act which permits orders requiring payment “by any person of a fair occupation rent for all or any part of the property”. Alternatively, the claim is made as one for mesne profits.4

[12]Edna has taken no steps in the proceedings. She did not appear at the hearing.

The plaintiffs’ position

[13]   The plaintiffs’ position in evidence and as emphasised in Ms Bradley’s subsequent submissions is a simple one. They say they have directly (in the case of Lucy) or indirectly (in the case of Lucy’s daughters, Jade and Ashley) invested significant energy and money in the property, in so doing honouring Valerie’s bequest. But latterly, the position has become intolerable. There is no income stream with which to attend to necessary repairs and they receive no return for their ownership stake. Indeed, the property has become a major source of family disharmony as a result of sister Edna’s suspension of rental payments.

[14]   Nor, despite a satisfactory relationship with Evelyn and Nepia, do they consider that it is their obligation to provide a home for them should either wish to move to Tāneatua. There is concern about whether any such move would simply create new frictions.

2      The statement of claim variously specifies the date as 6 September 2020 and 1 October 2020, but in a memorandum dated 12 November 2021 the relevant date is specified as 2 October 2021. I take the latest of these dates.

3      Logically the claim could have extended to the date on which possession is relinquished. However, that is not what was sought in the memorandum.

4      The statement of claim does not specify the juristic basis for the claim, referring only to a liability for “occupational rent”. The two alternative bases specified were advanced in submissions.

[15]   Ms Bradley says that, as the majority owners in the property, the plaintiffs’ wishes should carry additional weight. She says that all five co-owners will benefit from a sale on reasonable terms. She says that Lucy does not expect recompense for the approximately $100,000 invested in the property by way of improvements and that these improvements will sound in a higher sale price, again to Evelyn and Nepia’s benefit.

Evelyn and Nepia’s position

[16]   Neither addressed me by way of submission but their grounds for opposing the sale order were readily apparent from Evelyn’s evidence. Because the house was one to which she was taken as a newborn and in which she spent all her formative years, she has a strong emotional connection to it. She wishes to return to live there some day. She hopes to get a job with a friend at the local petrol station. She also considers that she is honouring her grandmother’s wishes by opposing the sale. In one of her text messages to Lucy she suggests that her grandmother would “turn in her grave” if she knew the house was being sold. She says that, were that to occur she wouldn’t be able to even drive past it again. She says that her whānau have nothing to fear from her assuming occupancy of the property. She says she is no “Mob bitch” and that she wouldn’t turn it into “the Mongrel Mob pad”.

The law

[17]Section 339 of the Act provides:

339     Court may order division of property

(1)A court may make, in respect of property owned by co-owners, an order—

(a)for the sale of the property and the division of the proceeds among the co-owners; or

(b)for the division of the property in kind among the co-owners; or

(c)requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.

(2)An order under subsection (1) (and any related order under subsection (4)) may be made—

(a)despite anything to the contrary in the Land Transfer Act 2017; but

(b)only if it does not contravene section 340(1); and

(c)only on an application made and served in the manner required by or under section 341; and

(d)only after having regard to the matters specified in section 342.

(3)Before determining whether to make an order under this section, the court may order the property to be valued and may direct how the cost of the valuation is to be borne.

(4)A court making an order under subsection (1) may, in addition, make a further order specified in section 343.

(5)Unless the court orders otherwise, every co-owner of the property (whether a party to the proceeding or not) is bound by an order under subsection (1) (and by any related order under subsection (4)).

(6)An order under subsection (1)(b) (and any related order under subsection (4)) may be registered as an instrument under—

(a)the Land Transfer Act 2017; or

(b)the Deeds Registration Act 1908; or

(c)the Crown Minerals Act 1991.

[18]   Orders under s 339(1) are made on application under s 341 which itself provides:

341 Application for order under section 339(1)

(1)An application for an order under section 339(1) (and for any related order under section 339(4)) may be made by all or any of the following people:

(a)a co-owner of any property:

(b)a mortgagee of any property of a co-owner or co-owners if, under the mortgage and subpart 7 of Part 3, the mortgagee has become entitled to exercise a power of sale:

(c)a person with a charging order over any property of a co- owner or co-owners.

(2)Every person who is one of the following must, if not already a party to the proceeding on that application, be served with a copy of that application:

(a)a co-owner of the property:

(b)a person who has an estate or interest in the property that may be affected by the granting of the application:

(c)a person claiming to be a party to, or entitled to a benefit under, an instrument relating to the property.

(3)The court to which that application is made may, by order made on an application for the purpose, change, or dispense with service on, the people who must be served under subsection (2).

[19]   Section 342 then sets out mandatory relevant considerations when any order under s 339(1) is sought.

342 Relevant considerations

A court considering whether to make  an  order  under section  339(1) (and any related order under section 339(4)) must have regard to the following:

(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:

(f)any other matters the court considers relevant.

[20]   Under s 339(4) the Court may make further orders which are, in turn, defined in s 343:

343 Further powers of court

A further order referred to in section 339(4) is an order that is made in addition to an order under section 339(1) and that does all or any of the following:

(1)requires the payment of compensation by 1 or more co- owners of the property to 1 or more other co-owners:

(2)fixes a reserve price on any sale of the property:

(3)directs how the expenses of any sale or division of the property are to be borne:

(4)directs how the proceeds of any sale of the property, and any interest on the purchase amount, are to be divided or applied:

(5)allows a co-owner, on a sale of the property, to make an offer for it, on any terms the court considers reasonable concerning—

(a)the non-payment of a deposit; or

(b)the setting-off or accounting for all or part of the purchase price instead of paying it in cash:

(6)requires the payment by any person of a fair occupation rent for all or any part of the property:

(7)provides for, or requires, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under section 339(1).

[21]   A full legislative history of these provisions is contained in the Court of Appeal’s recent decision in Yozin v New Zealand Guardian Trust Co Ltd.5 In an earlier decision of that Court, Bayly v Hicks, it stated:6

Under this new broad discretionary regime it is appropriate for a Judge to stand back from the submissions and proposals of the parties, and consider what, on an overview, taking into account the relevant considerations, is the most just and practical way through the impasse before the court, even if the answer may not reflect the orders sought by the parties. By definition the cases that come before the court arise where parties are locked into an ownership position which they cannot resolve because of the positions they have taken, and where a way out may be by a path neither has to that point contemplated.

5      Yozin v New Zealand Guardian Trust Co Ltd [2019] NZCA 202, (2019) 20 NZCPR 426 at [45]– [66].

6      Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [32].

[22]   Although the discretion exists in respect of a property “owned by co-owners” and co-owners are defined to mean “a tenant in common or a joint tenant” it is now settled law that remedies under the Act can be sought by any person who is either a co-owner at law or who is entitled to a conveyance of a legal interest in land.7 To that end the fact that Lucy, Jade and Ashley’s interest in the property is at this stage equitable only, is no impediment to the orders sought. Obviously however the terms of the Will dictate Nepia’s entitlement to a one-fifth share in the sale of proceeds. He must first attain the age of 20 years and, in the interim, his share will be held on trust for him by Lucy.

Discussion

[23]   I undertake my assessment in accordance with the statutory criteria in s 342 of the Act.

Extent of the share in the property of applicants

[24]   The applicants together have an equitable 60 per cent interest in the property. This majority position fortifies the strength of their application, without itself being decisive.

Nature and location of the property

[25]   As indicated, the property is of modest value in the context of current average New Zealand housing prices (approximately one-quarter of the national average value). This is a reflection of its size and location.

[26]   I accept that the property was acquired and the mortgage over it ultimately repaid as a result of Valerie’s hard work and dedication to family. I accept, by virtue of the note in her Will, that she saw it as a family home to be left to those who had a commitment to the area or had lived in the house for significant periods. The note also acknowledges however the considerable support given by Lucy to her mother over the years and that, independently, this was one of the reasons for the bequest in her favour.

7      See Yozin, above n 5, at [66]; Holland v Holland [2017] NZHC 1037 at [21]; and Lo v Lo [2020] NZHC 1614 at [14].

[27]   I accept Evelyn’s emotional commitment to the property by virtue of the kindness and support which Valerie demonstrated to her earlier in life, and Evelyn’s long period of residency there. Like Lucy, she has gone on to develop an independent life with most of her last 20 years spent in Gisborne, but I accept that she has a genuine desire to return to live in the property at some stage.

The number of other co-owners and the extent of their shares

[28]Evelyn and Nepia together hold a 40 per cent equitable interest in the property.

The hardship that would be caused to the applicants, as against the hardship to Evelyn and Nepia

[29]   I accept Lucy, Jade and Ashley’s evidence that although Lucy’s initial hope was to keep the property, the events of the last several years have placed a heavy burden on her both financially and emotionally. Lucy deposes that since Edna has ceased paying rent, the ongoing expenses in relation to the property have largely been met by her and:

In addition to the expenses that come with owning the property there is also ongoing whānau disharmony. The relationship between Edna and I has broken down irreconcilably. I refer to the text messages between Edna and I which confirm the level of stress and raru the property is causing our whānau.

[30]   I have read the text messages concerned. They evidence a complete breakdown in the relationship between Lucy and Edna. The emotional toll on Lucy continues to this day. It was plainly to be seen when she gave evidence.

[31]   Of course, assuming Edna voluntarily vacates the property (or does so pursuant to Court Order) these stresses may in part be mitigated. It is clear from their various text exchanges that Lucy and Evelyn have a largely respectful relationship and it is possible that if Evelyn were to obtain reliable employment she may be able to service 60 per cent of a market rental, paid equally to Lucy, Ashley and Jade. However, Evelyn and Nepia would continue to be responsible for 40 per cent of the rates, insurance and maintenance bills and it is not difficult to imagine, as the applicants fear, renewed discord around rental, rates, maintenance and outgoing recovery or the extent, for example, of what repairs were necessary over the medium to long term. In

addition, ongoing concern by Lucy, Jade and Ashley about the affiliations of Evelyn’s partner is inevitable.

[32]   In addition, Lucy states that if the property is not sold, she and her daughters “do not get any benefit from ownership of the house”. I take that as a reference to the fact that their capital (cumulatively something in the order of $150,000 or thereabouts) would be locked in for the foreseeable future with their only return being a modest rental income, much of which is likely to be consumed in overheads. Their desire to move on with their lives is understandable in that context.

[33]   Looking at the other side of the equation, I accept that a sale carries with it some hardship (particularly at an emotional level) for Evelyn. Nepia did not give evidence nor make submissions at the conclusion of the trial. I do not sense in him the same emotional connection to the property. That is understandable. His mother left the house at or about the time he was born and he has since established his own life. He has his own partner and a child.

[34]   Evelyn’s emotional attachment is obviously significant (and explicable). I have no doubt she is genuine in her desire to move into the property at some stage. But she too has developed an independent life. Since she left the property the financial obligations in respect of it have fallen first on Valerie and latterly on Lucy. If she were to return to the property her ability to service 40 per cent of the outgoings and 60 per cent of its market rental remains uncertain.

The value of any contribution made by any co-owner to the cost of improvements or maintenance of the property

[35]   There is no evidence of financial contribution by Evelyn or Nepia to maintenance of the property or outgoings in respect of it.

[36]   Lucy deposes to having spent substantial sums on improvements. However she was also in occupation of the property for an extended period during which she does not appear to have paid an occupation rent to the estate. It is now unrealistic for the Court to assess the comparative value of improvements and outgoings against any potential liability for 40 per cent of the market rent while she and her daughters lived

there. In broad terms I consider they are likely to approximate. Lucy does not seek any additional sum beyond her one-fifth share or on account of moneys expended on the property. Evelyn and Nepia must necessarily acknowledge that this asset is more valuable for the work Lucy and her husband have done to it.

[37]   In summary therefore, Evelyn and Nepia’s contributions to the property appear nominal (although I have no doubt they assisted Valerie as and when they could). From the perspective of Lucy and her daughters, the contributions have been significant but are likely to have been counter-balanced by the benefits of occupation. However, I accept that since she vacated the property Lucy has had to bear disproportionately the incidences of ownership, both emotionally and financially.

Any other matters

[38]   Lying in the background of the application is the fact that Valerie bequeathed her house to people whom she regarded as having a connection with it (albeit Lucy’s support of her at a personal level was also acknowledged). I have no doubt that Evelyn would have preferred the property to remain in family ownership after her death. Equally however, I have no doubt that she would not have wanted it to be a major source of ongoing anxiety and financial stress to her daughter, Lucy

Conclusion based on s 342 considerations

[39]   I am persuaded that, against the considerations identified in s 342, a sale order is appropriate. It is supported by a majority of owners. The application is made against a background of family discord. Ongoing occupation of the home by family members has the very real capacity to perpetuate tensions into the future. The point has regrettably been reached where the interests of not only the applicants but, in the long term, probably the wider family also are, in my view, better served by a sale and division of the proceeds. It both relieves Lucy of the considerable burden she has borne over the last several years and gives the next generation the opportunity to use their inheritance in a way which materially assists their own lives and, if prudently invested, lays a foundation for their own long term financial stability.

Mechanics of sale

[40]   Ms Bradley proposes a sale either by auction or by private treaty utilising the services of local real estate agents Harcourts, Whakatāne, with a minimum sale price established by registered valuers, Bay Valuation Service, Whakatāne.

[41]   She further proposes that if the property has not been sold within two months of listing, the minimum sale price be reduced by $10,000 with a further reduction in the same amount two months later and so on until the property is sold.

[42]   She proposes that Apogee Legal Limited be engaged to act on the sale and that the proceeds thereof, after payment of real estate agent’s commission, solicitors costs, and any outstanding rates and insurances, be divided among the five beneficiaries in equal shares (Nepia’s share to be held on trust until his 20th birthday).

[43]   Neither Evelyn nor Nepia take issue with these proposals (assuming I am persuaded a sale order is appropriate).

[44]   I consider the proposals sensible and proportionate to the value of the property, with the exception that I consider bi-monthly reductions at $5,000 more appropriate.

[45]   Evelyn is actively exploring a purchase of the property with the assistance of a friend in Australia. She has made some progress but the necessary bank approvals are not yet in place. Clearly a purchase by or on behalf of Evelyn would go a considerable distance towards addressing some of the underlying tensions in this litigation. No doubt also it is a result which Valerie would have welcomed.

[46]   In my view, the family dynamics at play in this case suggest a degree of latitude should be displayed towards Evelyn and Nepia. While accepting the proposed mechanics of sale on the open market as appropriate I therefore intend to direct that the orders I make lie in Court until 1 February 2022. In total, this will give Evelyn close to three months to advance an acceptable offer to purchase.

Claims against Edna

[47]   The plaintiffs seek an order for possession against Edna and an order that she pay an occupation rent from 2 October 2020 “until the hearing of this matter”. The claim is based on the agreed rental paid by Edna down to the date when payments were suspended ($250 per week) and for a total of 56 weeks. The quantified claim is therefore $14,000.

[48]   The claim for possession is made under the summary procedure in pt 13 of the High Court Rules. An affidavit in support under r 13.4 was filed with the statement of claim referencing a Notice to Vacate given on 2 September 2020 and service of a trespass notice on 2 October 2020. A copy of the latter was not kept (although one was provided to the Police) and was not therefore exhibited. I accept however that it was prepared and served.

[49]   As indicated, Edna has taken no steps either in relation to the summary claim for possession or the claim for occupation rent. As also indicated, Evelyn understands Edna to be imminently moving out of the property having purchased her own home elsewhere.

[50]   There is uncertainty as to the exact legal characterisation of Edna’s former occupation right. There is no tenancy agreement and, by virtue of s 5(1)(n) of the Residential Tenancies Act 1986 and associated definition of “member of the landlord’s or owner’s family”, that Act does not apply. A better characterisation may be a form of occupation licence which came to an end on 2 October 2020 following one month’s notice. Subsequent service of a trespass notice confirmed that position. Over a year later, Edna remains in occupation. No rental has been paid over that period although Evelyn, as I have noted, suggests Edna may have paid some of the intervening rates bills.

[51]   I am satisfied therefore that an order for possession is appropriate under pt 13 of the High Court Rules.

[52]   The claim for “occupational rent” proceeds as one for mesne profits or alternatively under s 343 of the Act. I need not determine the claim under the Act.

Although s 343(f) contemplates orders against “any person” there is an awkwardness about invoking the provision against a person who is not a co-owner in law or in equity when the whole of subpt 5 of the Act proceeds on that premise. Nevertheless, there seems no obvious reason why the words “any person” should be given anything other than their natural and ordinary meaning.

[53]   A claim for mesne profits (essentially, damages for trespass) is uncontroversial,8 and is typically quantified by what is a “reasonable rental”. In the present case I am satisfied that such a claim is both encompassed in the plaintiffs’ generalised claim for “occupational rental” and properly quantified by reference to the rent formerly and voluntarily paid by Edna.

[54]   This aspect of the claim is appropriately seen as advanced by Lucy in her capacity as executor and registered proprietor of the property. As such, any sums ultimately recovered from Edna will be held on trust for each of the five beneficiaries of the Tāneatua property.9

Result

[55]   I make an order for possession of the property described as 11 McKenzie Street, Tāneatua (comprised in Certificate of Title reference SA 1A/173, being Lot 2, Deposited Plan South Auckland 7309) (the property) against Edna Osborne of Tāneatua, Teacher.

[56]   I give judgment against Edna Osborne in favour of Lucy Margaret Rio in her capacity as executor and trustee of the estate of the late Valerie Katahi Hape in the amount of $14,000. If within 21 days of delivery of this judgment Ms Osborne produces, to the satisfaction of the Registrar, evidence of payment of rates, insurance or maintenance bills by her in the period since 2 October 2020, the judgment sum is

8      Recent applications in New Zealand include Wakefield as executor of the Estate of Helena Wakefield v Wakefield [2021] NZHC 1664 at [12]; and Matthews v Memelink and C M S Trustee Ltd as trustees of the Link Trust No 1 [2012] NZHC 2284 at [112]–[113].

9      Although the residue passes to Evelyn, Ashley, Jade and Nepia, clause 9 of the Will provides that “Income produced by any gift under this my Will between the date of my death and its vesting shall be accumulated and added to the gift.”

to be reduced commensurately. My orders in this respect are to lie in Court and not be sealed during this 21 day period.

[57]I further order that:

(1)The property is to be sold on the following terms:

(a)by either auction or private treaty;

(b)Lucy Rio will, in her capacity as executor and trustee, instruct Bay Valuation Service, Whakatāne, to provide a registered market valuation of the property for sale purposes. The minimum sale price will be determined by the valuation;

(c)in the event of a sale by auction and a failure to meet the reserve price, the property is to be placed on the market to be disposed of by private treaty on the same basis (including minimum sale price) as otherwise provided for in these orders;

(d)in respect of a sale by private treaty (including sale subsequent to an unsuccessful auction), if the property has not been sold within two months of listing the minimum sale price is to be reduced by $5,000 with ongoing reduction in a like amount on a bi-monthly basis until the property is sold;

(e)the sale is to be conducted by Harcourts, Whakatāne;

(f)Apogee Legal Limited, Whakatāne, is instructed to undertake the conveyance of the property and distribution of the sale proceeds to the beneficiaries;

(g)the Registrar of the High Court at Rotorua is authorised to sign, if necessary, any contracts or documents reasonably necessary to facilitate the marketing and auction of the property for sale;

(h)the Registrar of the High Court at Rotorua is authorised to sign, if necessary, any contracts or documents that are reasonably necessary to transfer ownership of the property to the purchaser;

(i)the parties are to share equally in the cost of insurance and rates, from 10 November 2021 to the date of settlement of the sale of the property;

(j)once the property is sold, Apogee Legal Limited will, on behalf of the parties, apply the sale proceeds as follows:

(i)payment of any amounts legally required to be paid in connection with the sale of the property (for example, Council rates);

(ii)reimbursement to Ms Rio of the cost of obtaining the valuation specified in [57(1)(b)] above;

(iii)payment of all costs of sale incurred by Harcourts, Whakatāne, in respect of sale of the property;

(iv)payment of costs and disbursements associated with the conveyancing and settlement of the sale;

(v)the balance to the beneficiaries as follows:

(a)Lucy Margaret Rio as to a 1/5 share;

(b)Jade Kelly Kahurangi Osborne as to a 1/5 share;

(c)Ashley Hinewai Georgina Osborne as to a 1/5 share;

(d)Evelyn Haturini as to a 1/5 share;

(e)Nepia Hamiora Haturini as to a 1/5 share (upon his attaining the age of 20 years, such sum to be held on the terms of the testamentary trust until that time).

(2)Leave is granted to the applicants to seek any further orders reasonably necessary in connection with the orders made above.

(3)The orders referred to in paragraph [57] above are to lie in Court and not be sealed until 1 February 2022, to facilitate a possible interim offer by, or on behalf of the first defendants.

Costs

[58]   I have not been  addressed  on  costs  other  than  a  nominal  reference  in  Ms Bradley’s written submission to seeking an order that “Ms Osborne [Edna] pays the Plaintiff [sic] costs and disbursements of and incidental to these proceedings.”

[59]   It cannot be the case that Edna is liable for all of the costs of the proceeding given that she has no equitable interest in the property of which sale is sought. It is possible that in this respect Evelyn and Nepia had a potential liability but the statement of claim did not seek costs against them and I infer no appetite for such a claim in any event.

[60]   If, as executor, Lucy wishes to advance a more limited claim against Edna for costs an appropriately quantified memorandum should be filed. However, it will need to recognise the limited role which the application for possession and claim for occupation rent took within the context of the proceedings generally. Indeed, Lucy may wish to give consideration to whether costs should lie where they fall given that Evelyn and Nepia have no interest in recovery and would be 2/5 beneficiaries.

Muir J