Sharma v Wati

[2021] NZHC 625

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2008-404-4494

[2021] NZHC 625

BETWEEN

DEO DATT SHARMA

Appellant

AND

NIRMALA WATI

Respondent

Hearing:

25 March 2021

Appearances:

Appellant (Respondent) on own behalf

R Parmenter for the Respondent (Applicant)

Judgment:

26 March 2021

JUDGMENT OF GORDON J

This judgment was delivered by me

on 26 March 2021 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Witten-Hannah Howard, Takapuna Counsel:   R Parmenter, Auckland

Copy to:            Appellant

SHARMA v WATI [2021] NZHC 625 [26 March 2021]

[1]    The respondent, Nirmala Wati (the applicant in this hearing), and the appellant, Deo Sharma (the respondent in this hearing), separated in August 2000. There followed an extended period of litigation which continues to this day.

[2]    On 10 August 2020, Downs J granted Ms Wati’s application for charging orders against Dr Sharma’s share of their home at 21 Petrel Place, Massey, Auckland (the property) in relation to costs orders of this Court, the Court of Appeal and Supreme Court made against Dr Sharma which remained unpaid.1

[3]    In his judgment, Downs J succinctly summarised the history of the litigation in which Dr Sharma was conspicuously unsuccessful. It is not necessary to set out a further summary in this judgment. Dr Sharma continues to represent himself as he has done since 2000.

[4]    Before Downs J, although Dr Sharma resisted the application for charging orders, he agreed to the property being sold. Ms Wati now seeks orders for the process for the sale of the property. She refers to the judgment of Allan J of 27 February 2009,2 in which the Judge set aside various orders of the Family Court and additionally ordered:

(a)On or about 31 October 2013 the placing of the property on the market for sale;

(b)An equal division of the net sale proceeds; and

(c)The filing of memoranda on “any other matter which counsel believes requires the attention of this Court, and in particular, any consequential issue arising from this judgment”.

[5]    In her affidavit in support of the present application, Ms Wati explains why she did not push for a sale of the family home on 31 October 2013 (which was the end of the period of exclusive occupation granted by the High Court). She said she had two

1      Wati v Sharma [2020] NZHC 2010.

2      S v W HC Auckland CIV-2008-404-4494, 27 February 2009.

children to look after and provide for and Dr Sharma had created difficulties around the sale process. Ms Wati says now the children are grown up, she is ready to move forward and sell the house and cut off the final link to Dr Sharma.

[6]    Having regard to the extent of the disagreements apparent from the history of litigation, Ms Wati proposes a very detailed and prescriptive process for the sale of the property.

[7]    Dr Sharma makes a number of arguments which are not pertinent to this application and I put them to one side. Of relevance he submits, first, that there is a question of res judicata. I do not accept that. The orders proposed are to enable the judgment of Allan J to be implemented.

[8]    However, Dr Sharma also says the house should have been sold in 2013 and he does not object to the sale of it now. But he does object to parts of the methodology proposed by Mr Parmenter on behalf of Ms Wati. The areas of disagreement (including matters raised but where there is not any real disagreement) are as follows:

(a)Mr Parmenter proposes that a neutral solicitor act for both parties on the sale. Mr Parmenter proposes Geoffrey Bilkey of Graham & Co, solicitors of Mt Eden. Mr Parmenter advises that Mr Bilkey has agreed to act in this role. Dr Sharma objects to Mr Bilkey acting. He says he is a very close friend of Mr Parmenter socially and professionally.    Dr Sharma says that he has asked Mark Henley-Smith of Henley-Smith Law, Glen Eden to act as his solicitor and Mr Henley-Smith has agreed.

Dr Sharma misunderstands the role proposed for the independent solicitor. The orders the Court will make are extremely prescriptive, and the independent solicitor appointed by the Court would carry out the process directed by the Court. The objections Dr Sharma raises in relation to Mr  Bilkey are  not matters that would  act to disqualify  Mr Bilkey as the solicitor appointed by the Court.

It is of course open to Dr Sharma to instruct a lawyer. But that lawyer will not take the steps in the process which I direct. That will be for Mr Bilkey;

(b)Dr Sharma objects to paying half the fee for the valuer for the preparation of a valuation report. The fee is $1,552.50. He says obtaining the valuation from a registered valuer is not something he agreed to and a real estate agent could have given a good estimate of the sale price and asking price.

I accept Mr Parmenter’s submission that it was entirely appropriate for Mr Parmenter to have obtained independent valuation evidence to put before the Court. It is also entirely appropriate that the cost of determining, independently, the two prices for the sale process (asking price and minimum sale price) should be shared by the parties. I note that in his written memorandum Dr Sharma agreed with the asking price and minimum sale price, although Mr Parmenter raises a matter in relation to the asking price, which I address next;

(c)The proposed asking price and proposed minimum sale price, based on the valuer’s report are $1,150,000 and $1,050,000 respectively. The proposed land agent of Barfoots (accepted by Dr Sharma) has indicated Barfoots’ assessment of likely market value. The price range as suggested by Barfoots is in accordance with the valuer’s figures referred to above. Mr Parmenter suggests that perhaps the asking price should be raised to $1.2 million but that the minimum selling price should be maintained.

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. I will make orders as proposed by Mr Parmenter given the proposed asking and minimum sale prices are in accordance with the valuation evidence (but with the asking price adjusted upwards slightly as noted above).

(d)Mr Parmenter proposes that Ms Wati shall meet the property’s general and water rates and any insurance premiums wholly. Dr Sharma questions the amount of outgoings, but given that they are to be met by Ms Wati, as the occupant, the cost is immaterial;

(e)Dr Sharma says that Ms Wati should be responsible for repaying Legal Aid charges. Mr Parmenter agrees, and he proposes an amendment to the process he had originally proposed;

(f)Dr Sharma also says that Ms Wati should pay all outgoings on the property. Mr Parmenter again agrees;

(g)Dr Sharma agrees that each party should pay one-half of the marketing costs and he observes that this would have to be paid before the estate agent starts marketing. Mr Parmenter notes this observation but says this will fall within the format of the draft orders.

[9]    Dr Sharma raises another matter and that is, he has filed an appeal against the decision of Downs J referred to in [2] above. However, Dr Sharma has not applied for a stay of the High Court decision. It is also uncertain as to whether or not the appeal will proceed. Mr Parmenter advises that Dr Sharma has failed to comply with procedural requirements. He therefore needs an order extending time. Ms Wati has opposed any extension of time. A decision on that issue is awaited.

[10]   I do not consider the filing of an appeal, in the absence of a stay of the High Court decision, is an impediment to the making of orders for the sale process.

[11]   I make the following orders to enable the implementation of the judgment of Allan J:

(a)The property is to be placed on the market for sale, forthwith;

(b)The land agent instructed to handle the sale shall be Ms Ashna Swamy of Barfoot & Thompson at its Royal Heights branch, on that company’s usual terms;

(c)The neutral solicitor to act for both parties on the sale shall be Geoffrey Malcolm Bilkey, of Graham & Co, solicitors, of Mt Eden;

(d)The asking price for the property shall be $1,200,000.00.

(e)The minimum selling price (at which both parties shall be required to sign a sale and purchase agreement) shall be $1,050,000;

(f)The form of sale and purchase agreement to be used shall be the current Real Estate Institute of New Zealand and Auckland District Law Society Agreement for Sale and Purchase of Real Estate, or as the parties may agree otherwise;

(g)The parties shall meet the following costs in the proportions of their ownership, i.e. Dr Sharma as to one-half and Ms Wati as to the other half:

(i)Land agent’s commission and marketing costs; and

(ii)The Seagars’ valuation fee of $1,552.50.

(h)Ms Wati shall meet the property’s general and water rates and any insurance premium wholly;

(i)The parties shall do all such things as are reasonably necessary to achieve the sale of the property, including:

(i)signing the land agent’s listing forms (joint obligation);

(ii)maintaining the property (including the buildings thereon) in reasonable condition (Ms Wati’s obligation);

(iii)assisting the land agent in the promotion of the property, including making the property available for open houses and interested party viewings and presenting the property (including the buildings thereon) in a tidy condition, inside and out, when there are open houses and viewings (Ms Wati’s obligation); and

(iv)subject to any proper or legal obligations to its form or terms, signing any agreement for sale and purchase for the property at a price at or above $1,050,000, provided the settlement date is within five weeks of the date of agreement and a deposit of   10 per cent is payable.

(j)As part of the settlement process (including receipt of the settlement monies and the balance of any deposit), the independent solicitor acting on the sale shall be required to:

(i)repay and discharge any statutory land charges over the property by paying the requisite amount to the Legal Aid Agency;

(ii)obtain discharges of any charging orders on the property by paying the requisite amounts to Ms Wati’s solicitors, Witten-Hannah Howard;

(iii)pay any outgoings due in respect of the property, such as land rates;

(iv)pay any land agent’s commission and marketing costs;

(v)deduct the independent solicitor’s reasonable costs;

(vi)hold the balance of the sale proceeds in his trust account in the parties’ joint names, then to:

A.     apply half the net proceeds each to separate trust account in the names of the parties;

B.     from Dr Sharma’s trust account, to pay Ms Wati’s trust account:

a.one-half of the sums paid to discharge the charging orders;

b.one half of the Seagars’ valuation fee;

C.     from Ms Wati’s trust account to pay Dr Sharma’s trust account:

a.one-half of the sum(s) paid for outgoings on the property;

b.one-half of the sum paid to discharge the statutory land charge(s).

D.     disburse the respective sums then held in the parties’ trust account to such bank account as the parties shall direct him.

[12]   Leave is reserved for either party to apply to the Court on 48 hours’ notice to vary the terms of the above orders or for any resolution of a dispute as to the terms or effect of the above orders.

Gordon J