Sharma v Wati
[2021] NZHC 1444
•18 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2008-404-4494
[2021] NZHC 1444
BETWEEN DEO DATT SHARMA
Appellant
AND
NIRMALA WATI
Respondent
Hearing: 21 May 2021, 11 June 2021 and 17 June 2021 Counsel:
R O Parmenter for the Respondent Appellant on own behalf
Judgment:
18 June 2021
JUDGMENT (NO 2) OF GORDON J
This judgment was delivered by me on 18 June 2021 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Witten-Hannah Howard, Auckland Counsel: R O Parmenter, Auckland
Copy To: The Appellant
SHARMA v WATI [2021] NZHC 1444 [17 June 2021]
[1] On 26 March 2021, on the application of the respondent, Nirmala Wati, I made detailed orders1 for the process for the sale of a property in order to give effect to the judgment of Allan J of 27 February 2009.2
[2] As noted in [8] of my judgment, Dr Sharma, although saying the property should have been sold in 2013, did not object to the sale of it now. But he did object to parts of the methodology proposed by Mr Parmenter, on behalf of Ms Wati. Included in my orders was an order (as proposed by Mr Parmenter) that a neutral solicitor act for both parties on the sale to carry out the steps as directed in my judgment.
[3] Ms Wati has since filed a without notice application dated 14 May 2021 seeking orders appointing a person to sign documents in place of Dr Sharma to enable the process for the sale of the property to proceed. The orders sought were (at that time):
… that the independent solicitor appointed by this Honourable Court, Geoffrey Malcolm Bilkey, be appointed to sign the following documents for and on behalf of the appellant, Deo Datt Sharma, in respect of the sale of the property at 21 Petrel Place, Massey, Auckland (the property):
i.The listing form from Barfoot & Thompson at its Royal Heights branch on that company’s usual terms; and
ii.Any sale and purchase agreement for the property which complies with the orders made in this Honourable Court on 26 March 2021 (the “Orders”); and
iii.Any A & I form required of Mr Sharma to convey title in the event of a sale.
[4] Ms Wati relies on r 11.22(4) of the High Court Rules 2016 and the Court’s inherent jurisdiction to make the orders sought.
[5] The application was accompanied by a memorandum from Mr Parmenter dated 14 May 2021 and a supporting affidavit affirmed on 14 May 2021 by Susan Gross, a legal executive in the firm of Witten-Hannah Howard, Mr Parmenter’s instructing solicitors.
1 Sharma v Wati [2021] NZHC 625.
2 S v W HC Auckland CIV-2008-404-4494, 27 February 2009.
[6] The basis for the application is, in short, that Dr Sharma has refused to sign the listing form from Barfoot & Thompson, which is the necessary first step in the sale process. Ms Gross annexes to her affidavit relevant email communications from an agent at Barfoot & Thompson and also from Mr Witten-Hannah to Dr Sharma dated 4 May 2021. Mr Witten-Hannah asked Dr Sharma to provide his reasons for not signing the listing form, giving him until 5 pm on 6 May 2021 to provide his reasons for refusing to sign. Shortly before that deadline, Dr Sharma emailed Mr Witten- Hannah and indicated a “satisfactory answer by Tuesday next week” (11 May 2021). As at 14 May 2021 Ms Gross says no response had been received.
[7] Ms Gross’ evidence is that there would be three documents which would need to be signed by the parties for a sale to be completed: the listing form with the real estate agent; a sale and purchase agreement and an Authority and Instruction form (A & I form), which is an authority from Dr Sharma to his solicitor to allow the property to be transferred (Dr Sharma’s half share).
[8] The independent solicitor, Mr Bilkey, has agreed to be appointed to sign those documents on behalf of Dr Sharma if the Court were minded to appoint him.
[9] Although the application was made without notice, it was served together with the supporting documents, by Mr Parmenter’s instructing solicitors on Dr Sharma by email on 14 May 2021. I issued a minute on the morning of 17 May 2021 giving Dr Sharma the opportunity to file and serve a response, together with a supporting affidavit, by 1 pm on Thursday 20 May 2021, and directed that there be a hearing of the application by telephone at 9 am on Friday 21 May 2021.
[10] Dr Sharma filed a memorandum dated 19 May 2021. He acknowledged receipt by email of Ms Wati’s application, the affidavit and memorandum in support. He said he opened the email on 15 May 2021. He submitted that Ms Wati’s application should be treated as an application on notice. Consequently r 7.24 of the High Court Rules 2016 applied. He said that he had not had the requisite period of 10 working days to file his notice of opposition. In a follow up email on 20 May 2021 to the case officer, Dr Sharma said there would be no point in the case officer telephoning him on 21 May 2021, as he had asked for the hearing to be postponed.
[11] The Registrar attempted to contact Dr Sharma by telephone on 21 May 2021, making two calls at approximately 9 am and then a further call at approximately
9.05 am. There was no answer to those calls.
[12] The hearing proceeded in Dr Sharma’s absence with Mr Parmenter present. I indicated to Mr Parmenter that if I were to make orders I did not consider Mr Bilkey should sign any documents on behalf of Dr Sharma. I expressed the view that would be a blurring of Mr Bilkey’s roles and if the Court were to make orders, then the Registrar of the High Court would be the person to be appointed, rather than Mr Bilkey.
[13]I made the following orders at the hearing on 21 May 2021:
(a)The Court will treat Ms Wati’s without notice application of 14 May 2021 as an on notice application (that direction is made without necessarily accepting the merits of the individual points that Dr Sharma makes in his memorandum of 19 May 2021); and
(b)Although the affidavit and supporting documents were emailed to Dr Sharma on 14 May 2021, and opened by him on 15 May 2021, because of my suggestion that the Registrar be appointed as the person to sign any documents (if orders were made), the date of service of Ms Wati’s application is deemed to run from the date of this minute;
[14] I made timetable orders for Dr Sharma to file and serve a response to Ms Wati’s application, and directed that he should respond to the application on the alternative bases that either Mr Bilkey or the Registrar of the High Court be appointed to sign the documents on his behalf. I also directed that there be a further hearing on 11 June 2021.
[15] Dr Sharma filed a memorandum dated 4 June 2021 opposing Ms Wati’s application together with an affidavit in support of his opposition, sworn 4 June 2021.
[16] Dr Sharma first says that it was not the case that he deliberately did not answer the telephone on 21 May 2021. He says there was a fault with the connection to his modem. He then makes a number of alternative submissions. He says that he did not refuse outright to sign the Barfoot & Thompson listing form. He says “matters also got slow” because he was busy preparing submissions to the Court of Appeal (in a related proceeding). He says that now the Court of Appeal has declined to reinstate his appeal, he feels the matter is clear for now. He further says he is willing to sign the necessary documents but “it will not happen at the click of Mr Parmenter’s fingers”.
[17] I observe that by now Dr Sharma has had more than sufficient time to sign the Barfoot & Thompson listing form.
[18] Despite his professed willingness to sign the listing form, Dr Sharma makes further submissions in opposition to the application. He says Ms Wati’s consent is required in order for the Court to make the orders sought on her behalf. Dr Sharma refers to my minute of 4 May 2021 in response to a memorandum filed by Mr Parmenter dated 27 April 2021 in which he stated that Dr Sharma had refused to sign the Barfoot & Thompson listing form. In my minute referred to by Dr Sharma, I noted counsel’s memorandum but said that an application is required with a supporting affidavit. Dr Sharma submits that it can be reasonably concluded that Ms Wati does not want any more court cases and has refused to make any affidavit.
[19] The Court does not draw that conclusion which would not be a reasonable one. The application was filed on her behalf. Mr Parmenter is acting as her counsel and there was an affidavit in support of the application affirmed by Ms Gross. Dr Sharma describes the filing of Ms Gross’ affidavit as a “bizarre move”. He submits Ms Gross cannot speak for Ms Wati or for what Ms Wati would like to be done. He says there can be no surrogates for Ms Wati. That submission has no merit.
[20]Dr Sharma also says the sale of the property should proceed by way of auction.
[21] It was not intended that this be a matter for consideration at the hearing on 11 June 2021. One of the orders I made in my judgment of 26 March 2021 was that
the property be listed for sale i.e. not by way of auction. That order was made on the basis of evidence in a valuation report providing a price range which accorded with the suggestion of Barfoot & Thompson (but with the asking price uplifted on the basis of a suggestion by Mr Parmenter at the hearing). My judgment records:3
Dr Sharma indicated he agreed with that increased figure but then belatedly suggested the sale process should be by way of auction. Dr Sharma has had the benefit of proposed draft orders from Mr Parmenter since November last year. This is the first time he has raised the suggestion of an auction. He does not provide any evidence to suggest sale by auction will be a superior process as opposed to sale by listing. …
[22] However, annexed to Dr Sharma’s affidavit of 4 June 2021 is an email dated 30 March 2021 from the real estate agent at Barfoot & Thompson to Mr Parmenter’s instructing solicitors and Dr Sharma. In her email she suggests the sale process be changed to sale by auction. The email sets out reasons why she makes that suggestion.
[23] In my judgment of 26 March 2021 I reserved leave for either party to apply to the Court to vary the terms of my orders. I considered that the 30 March 2021 email from the agent at Barfoot & Thompson indicated that the Court may need to review the method of sale ordered. As against that, Mr Parmenter suggested that the likely costs associated with the process of auction may well be greater than if the property were to be listed for sale by negotiation. I understood Mr Parmenter to say at this stage his instructing solicitor, Mr Witten-Hannah is in fact having to meet the costs of the sale process.
[24] I directed Mr Parmenter to obtain further evidence regarding the mode of sale from the estate agent by way of an affidavit. I directed the affidavit should contain the estate agent’s recommendation as to mode of sale with supporting reasons. The affidavit should also include evidence as to the comparative cost of advertising associated with a negotiated sale as opposed to sale by auction.
[25]I adjourned the hearing of Ms Wati’s application to 17 June 2021.
3 Sharma v Wati above n1 at [8](c).
[26] Mr Parmenter filed a memorandum for the purpose of the hearing on 17 June 2021. Annexed to his memorandum are several emails from the real estate agent since the hearing on 11 June 2021 and a draft affidavit based on one of her emails. In an email of 11 June 2021 to Mr Parmenter and copied to others, (after the telephone conference) the real estate agent stated:
Right now, with recent changes in the market, it won’t make much of a difference if we go via auctions or via negotiation. Auction success rates have fallen dramatically as a result of new rules around LVRs since April this year and many homes that don’t sell under the hammer end up going into negotiation anyway.
Marketing costs for both auction and negotiations are around the same. When we had our initial conversations with the vendors, they had both agreed to an auction because in that market, it was the best way to sell. … So in summary, right now in this market, the method of sale won’t make much of a difference if any.
[27] Mr Parmenter incorporated the email into an affidavit which he forwarded to the estate agent. She notes in response by email that apart from the incorrect spelling of her surname “the rest looks accurate”. However, in a later email she says she would not sign the affidavit. She says as a real estate salesperson she needs to remain a neutral party and signing the document would make her appear as if she were favouring one vendor over the other.
[28] However she subsequently affirmed an affidavit confirming the contents of her draft affidavit. She confirms that there is not really any difference in cost between a sale by negotiation and a sale by auction. She also confirms that there is not likely to be much difference in outcome at present whether by negotiation or auction.
[29] At the hearing on 17 June 2021, Dr Sharma persisted in his submission that the Court should amend its orders so that the sale proceed by auction. Having regard to the evidence of the real estate agent there is no basis for the order to be altered. Further, I observe there is the potential for a complication with a sale by auction. There would be a requirement to sign the agreement at the end of the auction. If Dr Sharma does not attend the auction for whatever reason, or if he refuses to sign the agreement for some other reason, that would create a potential difficulty with the sale process. Given Dr Sharma’s position to date, these concerns, raised by Mr Parmenter, are realistic concerns.
[30] Finally, Dr Sharma submits that r 11.22 of the High Court Rules applies only to the estates of deceased persons. I do not accept that submission. There is nothing in the rule that limits it in that way.
[31] I am satisfied the Court has jurisdiction to make the orders sought. It may act under its inherent jurisdiction to ensure that its prior orders are carried out.4 The Court may also have jurisdiction under r 11.22(4) of the High Court Rules which provides:
(4)To effect the sale of the property, the court may—
(a)give all necessary directions, including directions in relation to the transfer or conveyance of the property sold; and
(b)appoint a person to sign any documents required to transfer or convey to the purchaser the property sold.
[32] As noted, Mr Parmenter relies on both the Court’s inherent jurisdiction and r 1.22.
[33] I am also satisfied that the evidence establishes that Dr Sharma has refused or at least failed to sign the Barfoot & Thompson listing form and that he has not provided any reasonable grounds for failing or refusing to do so.
[34] By the time of the hearing on 17 June 2021, Mr Parmenter had adjusted the orders sought. In relation to the real estate agent’s listing form, he proposed that Dr Sharma be given two clear working days within which to sign the listing form, in default of which, the Registrar of the High Court should be authorised to do so. Dr Sharma said he would be prepared to sign the document if he was given three clear working days. In my view, Dr Sharma has had more than sufficient notice that his signature on the listing form is required. I am satisfied that two clear working days gives him sufficient opportunity to sign the form.
[35] I am further satisfied that the Court should appoint a person to sign the listing form on behalf of Dr Sharma if he fails or refuses to do so within the two day period. Dr Sharma objects to Mr Bilkey being appointed to sign the documents. He also
4 Roblin v Roblin [2021] NZHC 238 at [10] citing Official Assignee v Mathiesen [2018] NZAR 623; [2018] NZHC 843; Sillick v Sillick [2020] NZHC 282 at [21].
objects to the Registrar signing on the basis that the Registrar would meet “more than gentle intimidation from the counsel”.
[36] I have already expressed reservations as to Mr Bilkey’s appointment in this role. Under my orders made on 26 March 2021, Mr Bilkey’s role was to act as an independent solicitor to carry out the process directed by the Court. I consider the Registrar should be the person appointed to sign on behalf of Dr Sharma. There is no proper basis for Dr Sharma’s objection to the Registrar signing any document on his behalf.
[37] Dr Sharma submits that orders are sought on the basis of speculative future behaviour by him. While Dr Sharma has said he will sign the listing form, I am satisfied, on the basis of his behaviour to date that the Court can and should make the first order in the amended form as sought. However, as to the other two orders, while having regard to Dr Sharma’s past conduct, it is reasonable to anticipate that he will not sign those documents, he has not yet failed or refused to do so. He should be given an opportunity to sign. I therefore make the following orders:
(a)If within two clear working days of being provided with a Barfoot & Thompson, Royal Heights branch listing form on that company’s usual terms for the sale of the property, which complies with the orders made by this Court on 26 March 2021 (the orders), Deo Datt Sharma (Dr Sharma) fails or refuses to sign the listing form, the Registrar of the High Court at Auckland is appointed to sign the listing form for, and on behalf of Dr Sharma, in respect of the sale of the property at 21 Petrel Place, Massey, Auckland (the property);
(b)If within 24 hours of being presented with any sale and purchase agreement for the property (including any counter offers) which complies with the orders, Dr Sharma fails or refuses to sign the sale and purchase agreement or any counter offers, the Registrar of the High Court at Auckland is appointed to sign the sale and purchase agreement (including any counter offers) for, and on behalf of, Dr Sharma, in respect of the sale of the property; and
(c)If within three clear working days of being provided with any A & I form required of Dr Sharma to convey title in the event of a sale of the property, Dr Sharma fails or refuses to sign such form the Registrar of the High Court at Auckland is appointed to sign the A & I form for, and on behalf of, Dr Sharma in respect of the sale of the property.
[38] Leave is reserved for either party to apply to the Court on 48 hours’ notice for any resolution of a dispute in relation to the above orders.
Costs
[39] I heard from the parties on costs. Mr Parmenter seeks costs both in relation to the hearing on 25 March 2021 (resulting in my judgment of 26 March 2021) and as a result of what he describes as the on-going costs in having to deal with Dr Sharma’s disobedience. Dr Sharma opposes the application.
[40] Ms Wati has been the successful party. She has been required to make two applications to the Court. The first to seek orders as to the process for the sale of the property and the second to obtain court orders for documents to be signed to enable that process to proceed. In those circumstances she is entitled to costs in relation to both applications. I award costs on a 2B basis against Dr Sharma in favour of Ms Wati. Mr Parmenter may file a memorandum itemising the claim for costs.
Gordon J
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