Silcock v Bell HC Auckland M245-Sd00
[2001] NZHC 403
•23 May 2001
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M245-SD00
BETWEEN VICTORIA K SILCOCK
Plaintiff
AND JUDITH S BELL
Defendant
Date: 23 April 2001
Judgment: 23 May 2001
Counsel: K McLeod for plaintiff
P Dale for defendant
JUDGMENT OF O’REGAN J
| Table of Contents | |
| Para | |
| The facts | [2] |
| Did Mrs O’Sullivan make a mistake or know Mrs Bell had made a mistake? | [46] |
| Factual position: summary | [58] |
| Relief sought by Mrs Bell | [64] |
| Rectification | [65] |
| Mistake known to the other party | [72] |
| Mistake by both parties as to the value of Mrs Hutt’s interest | [74] |
| Relief sought by Mrs O’Sullivan | [78] |
| Costs | [80] |
[1] This case is an action by the plaintiff, Victoria Kathryn O’Sullivan (formerly Silcock) (Mrs O’Sullivan), against the defendant, Judith Sylvia Bell (Mrs Bell), seeking an order that Mrs Bell pay to Mrs O’Sullivan the sum of $100,000 in accordance with a deed of acknowledgement of debt dated 13 September 1998 (the Acknowledgement of Debt) which, in turn, was entered into pursuant to a deed of family arrangement dated 13 September 1998 (the Deed of Family Arrangement). Mrs Bell is Mrs O’Sullivan’s sister. The case is somewhat unusual because Mrs Bell’s statement of defence admits the allegations made in the statement of claim but pleads certain defences based on mistake and makes counterclaims seeking a declaration that the contractual arrangement evidenced by the Deed of Family Arrangement and Acknowledgement of Debt be varied or rectified.
The facts
[2] In July 1990 Mrs O’Sullivan’s and Mrs Bell’s mother, Florence Muriel Hutt (Mrs Hutt), and Mrs Bell’s husband, Robert Bell, purchased a property at 40 Queens Drive, Waiheke Island (the Waiheke property) for $68,500. The purchase price was paid in full by Mrs Hutt. It was intended that Mr and Mrs Bell would build a holiday home on the property.
[3] The solicitor who acted for both Mr Bell and Mrs Hutt, Mr Barfoot, advised that they should enter into a property agreement recording the nature of each party’s interest in the Waiheke property. The evidence showed that he made a number of efforts to persuade them to do this but because the nature of the arrangement was somewhat uncertain at the time, it was agreed that title to the Waiheke property would be taken by Mrs Hutt and Mr Bell as tenants in common. In fact, the title records that Mr Bell and Mrs Hutt were tenants in common in equal shares.
[4] A file note made in November 1990 by the solicitor acting for both parties recorded that the intention was that Mr Bell’s contribution to the property would be the cost of the building and an agreement between them would record that the contribution of each party would be repaid first and that any balance after sale would be split pro rata based on their respective contributions.
[5] A draft deed, dated September 1994, was prepared. It provided that a dwelling would be erected on the property, which would then be offered for sale and notwithstanding that the parties owned the property as tenants in common in equal shares, the proceeds after sale would be divided on the basis that Mrs Hutt would receive one-third and Mr Bell two-thirds. It also provided that Mr Bell would be responsible for outgoings and would be entitled to have the use, occupation and enjoyment of the property up to the time of sale. The deed was never signed.
[6] Mr Bell’s evidence was that the one-third/two thirds split was based on the respective contributions to the property of $68,500 from Mrs Hutt (the purchase price) and $170,000 from Mr Bell (the amount that a house of the type built by Mr and Mrs Bell would cost if built independently). In fact Mr and Mrs Bell had put in considerable labour themselves so their actual cost (not including their own labour), was something less than this sum.
[7] Mr Bell gave evidence that he was not happy with the provisions of the draft property agreement requiring sale of the property. He said that because of disputes with the neighbours relating to access issues, it was not possible to sell the property. In any event the matter was allowed to drift - Mr Bell says neither he nor Mrs Hutt were particularly concerned about this.
[8] Mr Bell’s evidence was that much later, in 1997, he and Mrs Hutt discussed the matter again and it was agreed that the one-third/two-thirds split would be altered to reflect Mrs Hutt’s interest in the property in dollar terms. This was calculated by taking the original contribution of $68,500 and adding interest at an amount equivalent to that which Mrs Hutt would have earned if the money had been placed on deposit at a bank, which amounted to a total sum of $95,000. Mr Bell said he cross checked this by reference to the government valuation at the time, which was $340,000. On the basis that Mrs Hutt’s contribution was $70,000 and Mr Bell’s was $170,000, that valued Mrs Hutt’s interest at $99,000. If the one-third/two-third ratio was applied strictly Mrs Hutt’s share would have been approximately $113,000.
[9] The disputes with neighbours continued and nothing was done to document this new arrangement, but Mr Bell’s evidence was Mrs Hutt was happy with her share being quantified at $100,000. Mrs Hutt did not discuss the situation with Mrs O’Sullivan and neither did Mr or Mrs Bell.
[10] Mrs Hutt became ill in 1997 and her condition deteriorated in early 1998. Steps were taken to document the respective interests of Mrs Hutt and Mr Bell in the property while Mrs Hutt was still alive.
[11] The solicitor who had previously acted for Mrs Hutt and Mr Bell, left the firm and the file was taken over by Mr Wood. He gave advice to Mr and Mrs Bell dated 30 March 1998 as to how matters could be arranged to give effect to the agreement they had outlined to him. It was clear that the continuation of the position where Mrs Hutt had an equal share as a tenant in common with Mr Bell would cause complications if she were to die, because her estate was being left to her two daughters, Mrs Bell and Mrs O’Sullivan, equally. Thus, Mrs O’Sullivan would receive a quarter share in the Waiheke property upon her mother’s death. Mr Wood also wrote a letter of advice to Mrs Hutt about how matters could be dealt with but the evidence was this was never provided to her, because of her ill health at that time.
[12] Mr Wood advised Mr and Mrs Bell they should advise Mrs O’Sullivan of what was being proposed because of her interest, as a prospective beneficiary under Mrs Hutt’s will, in any arrangement entered into.
[13] On 24 April 1998, Mr Wood wrote to Mrs O’Sullivan and her husband, Patrick, seeking Mrs O’Sullivan’s acceptance of the arrangements outlined in the letter. As the correspondence which ensued is important in the determination of the points at issue in this case, I will deal with it in some detail.
Mr Wood’s letter of 24 April 1998
[14] The 24 April 1998 letter set out the background to the matter. It recounted that Mrs Hutt had paid $68,500 for the purchase of the Waiheke property and the intention was she would receive a fair return on her investment. It recorded that pending documentation of the arrangements, it was decided that the property would be owned by the parties as joint tenants [the evidence showed that this was not correct - Mr Bell and Mrs Hutt had agreed to be tenants in common], but that it was in fact held as tenants in common in equal shares. Importantly, it said that the intention was that “on Mrs Hutt’s death [Mr Bell] would inherit the property as survivor and would then pay to [Mrs O’Sullivan] as part of her share of Mrs Hutt’s estate, the sum of $65,500 [it was common ground that this was intended to be $68,500] plus accumulated interest thereon”. If that was correct, then it appeared to indicate that Mrs O’Sullivan would receive $100,000 (ie $68,500 plus interest) from Mr Bell.
[15] The letter then went on to describe the steps which were proposed to correct the problem which was identified in the first paragraph. There were three options; one was an amendment to Mrs Hutt’s will which was discounted due to her illness. The second was for Mrs Bell to purchase Mrs Hutt’s interest in the property for the sum calculated as her initial investment plus interest (ie $100,000), which would be treated as a loan from Mrs Hutt to Mrs Bell secured by a mortgage over the Waiheke property, and repayable upon Mrs Hutt’s death. The third option was to execute transfers and re-arrange ownership of the property so that Mrs Hutt’s share corresponded with her expected interest, but this was discounted also, presumably because of Mrs Hutt’s illness.
[16] The letter enclosed documentation to give effect to the second option and asked for Mrs O’Sullivan’s acceptance.
[17] It is important to note that this letter is internally inconsistent. The second paragraph outlining the background indicates that the intention was that on Mrs Hutt’s death, Mr Bell would inherit the Waiheke property and would pay $100,000 to Mrs O’Sullivan. The only basis on which that could occur would be if Mrs O’Sullivan was entitled to all of Mrs Hutt’s interest in the Waiheke property, or if Mrs Hutt’s interest was $200,000, of which Mrs O’Sullivan would be entitled to half. The second alternative can be ruled out because the relevant part of the text refers to the payment to Mrs O’Sullivan as equating with the amount invested by Mrs Hutt plus interest and it is common ground that $100,000 was a reflection of Mrs Hutt’s investment of $68,500, plus an allowance for interest. The first alternative was never in contemplation, so it seems that this description of the background was mistaken.
[18] The proposals put to Mrs O’Sullivan for resolving the problem clearly indicate that they all involve quantifying Mrs Hutt’s interest in the Waiheke interest at $100,000, and arranging for steps to be taken to ensure that the legal documentation reflected that limited interest. In particular, the option which Mr Wood proposed be followed through involved Mrs Bell paying $100,000 to Mrs Hutt (but payment being deferred until Mrs Hutt’s death), which, on the basis that Mrs O’Sullivan would receive half of this on the death of her mother, meant she would eventually receive $50,000.
Mrs O’Sullivan’s replies of 4 and 5 May 1998
[19] After a follow up letter from Mr Wood, Mrs O’Sullivan responded by a fax message dated 4 May 1998, written on her behalf by her husband. Mrs O’Sullivan said she did not want to be pressured, that she was not happy with aspects of what was proposed, that she did not “agree with the valuation of the property (if that is relevant)”, and that she considered the proposal unduly favoured Mr and Mrs Bell. She said she would take action to overturn any arrangements done without her consent. It is not quite clear what prompted that last comment because although the proposal involved a transaction between Mrs Hutt and Mrs Bell (ie Mrs O’Sullivan would not have to sign anything), Mr Wood’s letter stated that he was writing to her on behalf of Mr and Mrs Bell for the very purpose of seeking that consent.
[20] The next day Mrs O’Sullivan sent another fax to Mr Wood, again written on her behalf by her husband. The matters of significance in this fax are:
[a] Mrs O’Sullivan’s description of the documents as she understood them. The fax said “The intent of the documents supplied appears to be to execute a mortgage in favour of my mother for $100,000 [see paragraph [15] above]. This would acknowledge and protect her interest in the property. My understanding of this is that in the event of her death that $100,000 would become part of her estate and would be shared equally between Judy and me”. This indicates that Mr and Mrs O’Sullivan realised what was being proposed would eventually yield to Mrs O’Sullivan a payment of $50,000.
[b] She then referred to the second paragraph in the letter from Mr Wood which described the original intention in terms which implied a payment from Mr Bell to Mrs O’Sullivan of $100,000. She commented “This appears to be somewhat at variance with what the documents intend. I will say, however, that it is more in line with what I understood Robert to be offering when he rang me a couple of weeks ago. If that was the intention at that time, why is something completely different being proposed now?” The reference to the telephone call from Robert refers to a call which Mrs O’Sullivan says she received from Mr Bell before the letter from Mr Wood. Mr Bell denied making the call. There was a suggestion that it may have been a call from Mr Wood. The evidence did not allow me to establish whether any call had been made, and if so, by whom. Nevertheless, for present purposes it is significant that the internal inconsistency in the 24 April letter was the source of some confusion for Mrs O’Sullivan in her response.
[c] Mrs O’Sullivan concluded by saying “without prejudice, and conditional on my obtaining legal advice, that given all the above I would probably agree to an arrangement which seems to be set out in your letter, and what Robert appeared to be offering me. Given what I consider to be the value of Waiheke, I think this would be a fair outcome in relation to Waiheke only.” This statement can be taken as provisional agreement to what Mr Wood proposed (ie an arrangement with Mrs Hutt which would eventually yield a payment of $50,000 to Mrs O’Sullivan), but the fact there is an explicit reference to “what Robert appeared to be offering me”, when taken with the earlier reference to the alleged phone call from Mr Bell, could be interpreted as referring to a provisional agreement to an arrangement which involved a payment of $100,000 to Mrs O’Sullivan from Mr Bell (in which case she would receive $100,000, not $50,000).
Mr Wood’s letter of 6 May 1998
[21] Mr Wood wrote back to Mrs O’Sullivan on 6 May 1998. He interpreted her reference to his description of the original intention as highlighting a change from the original proposal that Mr Bell would inherit the property, to an arrangement involving Mrs Bell. It did not seem to occur to Mr Wood that his description of the original arrangement indicated a payment to Mrs O’Sullivan of $100,000, (as indicated in paragraph [14] above), and so he did not comment on the fact that the proposals he was making would eventually yield $50,000 to Mrs O’Sullivan as opposed to $100,000 if Mr Bell were to pay her. The rest of the letter is otherwise not relevant for present purposes.
Mr Boyle’s letter of 8 May 1998
[22] Mr and Mrs O’Sullivan consulted their legal adviser, Mr Boyle. The evidence of Mr and Mrs O’Sullivan and Mr Boyle was that Mrs O’Sullivan instructed Mr Boyle that she wanted to receive $100,000 for her prospective one-quarter interest in the Waiheke property. Mr Boyle said he had kept no notes of this meeting which was surprising and, given the nature of this litigation, unfortunate. He wrote to Mr Wood on 8 May 1998. He raised some technical issues about the effectiveness of the documentation and the proposed execution of it under a power of attorney and then proposed an alternative method of achieving the desired outcome. The relevant paragraph reads:
“One way to effect a resolution now would be to reach agreement between Victoria and Judy, being beneficiaries of their mother’s estate. Such agreement would be recorded in a deed whereby Judy will receive her mother’s interest in the Waiheke property and Victoria will receive $100,000 and the balance of the estate will be divided equally between them.”
[23] In his evidence, Mr Boyle said that what he was proposing in this paragraph was an arrangement whereby Mrs Bell would receive the half interest in the Waiheke property held by her mother and Mrs O’Sullivan would receive $100,000 from Mrs Bell with the balance of the estate being divided equally between them. What Mr Boyle said he was proposing was that the arrangement be changed so that Mrs O’Sullivan would receive $100,000 in return for giving up her prospective one-quarter interest in the Waiheke property, in contrast to the proposals put forward by Mr Wood under which Mrs O’Sullivan would receive $50,000. Mr Boyle said this was consistent with the instructions he received from Mr and Mrs O’Sullivan and they both said that was their intention and the instruction they gave to Mr Boyle.
[24] On the other hand, Mr Wood interpreted the statement in Mr Boyle’s letter as indicating agreement on the part of the O’Sullivans to what he had proposed earlier, albeit with a different legal framework to achieve the same economic outcome. He interpreted Mr Boyle’s proposal as meaning “Judy will receive her mother’s interest in the Waiheke property and Victoria will receive $100,000 from her mother’s estate, and the balance of the estate will be divided equally between them.
[25] Mr Wood’s evidence was that the 8 May letter was preceded by a telephone conversation with Mr Boyle, from which he took the understanding there was agreement that the half share in the Waiheke property would be transferred to Mr Bell and in exchange Mrs O’Sullivan would receive the first $100,000 from the residuary estate and the balance would be divided equally between Mrs O’Sullivan and Mr Bell, ie that the net sum received by Mrs O’Sullivan would be $50,000. Receipt of the 8 May letter confirmed this view in his mind. Mr Boyle did not recall such a conversation.
[26] Although Mr Boyle maintained that the meaning of the crucial sentence in the 8 May letter clearly indicated that Mrs O’Sullivan was insisting on receiving $100,000 from Mrs Bell, I find it difficult to accept that proposition. Mrs O’Sullivan said that she instructed Mr Boyle that what had been proposed by Mr Wood was unacceptable, but she would accept $100,000 from Judy. In other words, she was insisting on receiving double what the proposals put forward by Mr Wood would yield to her. Mr Boyle confirmed that those were his instructions, yet there is nothing in his letter that indicates that Mrs O’Sullivan was objecting to the proposal put forward by Mr Bell and making a counter proposal requiring a payment of twice as much as she would receive under Mr Wood’s proposal.
[27] While I accept one possible interpretation is that put on the letter by Mr Boyle, I think Mr Wood was quite justified in interpreting Mr Boyle’s letter as indicating acceptance of the proposal in economic terms, but disagreement with the legal methodology of giving effect to it. If Mr Boyle’s letter had stated clearly that there was a disagreement on the fundamental nature of the proposal and a requirement for a payment of twice as much as was being offered, the problem which led to this litigation would never have occurred.
Mr Wood’s letter of 12 May 1998
[28] Mr Wood took it from Mr Boyle’s letter that there was agreement on the proposal, apart from the methodology of achieving it. He wrote to Mr Boyle on 12 May 1998 confirming acceptance by Mr and Mrs Bell of the arrangement proposed by Mr Boyle (as he had interpreted it), and asked Mr Boyle to confirm that Mr and Mrs O’Sullivan also agreed.
Mr Boyle’s letter of 15 May 1998
[29] Mr Boyle replied by letter of 15 May 1998, confirming that he had spoken to Mrs O’Sullivan and she was agreeable to the arrangement as proposed in Mr Boyle’s letter of 8 May 1998. Of course, there were now two different interpretations as to what was proposed in that letter, so Mr Boyle’s letter did not resolve the apparent divergence of views about what proposal was being agreed to. There is a comment in the letter of 15 May 1998 about Mrs O’Sullivan not being liable for gift duty or any other tax, which could be interpreted as indicating that Mr Boyle realised that she was accepting an arrangement which involved a transfer of the legal interest held by Mrs Hutt (an equal share as tenant in common in the Waiheke property) for a value which was less than its actual value, reflecting Mrs Hutt’s agreement to quantify her interest at $100,000. It can be argued that this supports Mr Wood’s view that Mr Boyle was agreeing on behalf of his clients to the underlying economic transaction proposed in his earlier letters, but in a different legal form. That is one possible interpretation, but I do not find it conclusive.
Mr Wood’s draft documents
[30] On 21 May 1998 Mr Wood sent draft documentation to Mr Boyle, for his comments. This was a Deed of Family Arrangement containing a crucial clause which said that on Mrs Hutt’s death the trustee of her estate would divide the residuary estate by transferring to Mrs Bell the interest in the Waiheke property held by Mrs Hutt and the trustees of the estate would then pay Judy the sum of $100,000 (it was evident that this was an error and was meant to refer to Vicky, ie Mrs O’Sullivan), and the balance of the estate would be divided equally between Mrs Bell and Mrs O’Sullivan. If this happened, Mrs O’Sullivan would effectively receive $50,000 since the estate in which she held a 50% interest was making the $100,000 payment.
Mr Boyle’s letter of 25 May 1998
[31] Mr Boyle wrote back to Mr Wood on 25 May 1998 reporting he had sent the draft to his client for comments and referring particularly to clause 1(b), pointing out the erroneous reference to Judy rather than Vicky. Importantly, the clause he was referring to was absolutely crucial because it provided that it was the estate that would pay the $100,000 to Mrs O’Sullivan and was therefore consistent with Mr Wood and Mr and Mrs Bells’ understanding of the transaction.
Mrs Hutt ‘s death
[32] Mrs Hutt died on 30 May 1998. Following her death there was correspondence with trustees of the estate which is not relevant for present purposes and nothing was done because of the need to await probate of Mrs Hutt’s will.
Mr Boyle’s letter of 4 August 1998
[33] The next correspondence of importance was a letter from Mr Boyle to Mr Wood of 4 August 1998 which dealt with the way in which the documentation needed to be structured to accommodate the fact that Mrs Hutt had died and her legal entitlement to a one-half share in the Waiheke property would be distributed to Mrs O’Sullivan and Mrs Bell in equal shares. Mr Boyle’s letter suggests to Mr Wood that he prepare an agreement for sale and purchase in respect of the undivided one-quarter share in that property which would be held by Mrs O’Sullivan, from her to Mrs Bell for $100,000. It suggested that the payment of that sum be secured by an unregistered mortgage over Mrs Bell’s share in Mrs Hutt’s other freehold property at Blockhouse Bay, and paid when that property was eventually sold. This letter unequivocally states the position as contended by Mrs O’Sullivan because it provides for a payment to her from Mrs Bell of $100,000 for her one-quarter interest in the Waiheke property, rather than a payment to her from her mother’s estate of $100,000, which would net her $50,000.
Mr Wood’s letter of 5 August 1998 to Mrs Bell
[34] On 5 August 1998 Mr Wood wrote to Mr and Mrs Bell explaining the nature of the documentation proposed by Mr Boyle. This accurately describes what Mr Boyle had proposed but does not point out that it involves Mrs Bell paying $100,000 to Mrs O’Sullivan, ie a doubling of what had earlier been proposed as the compensation to be received by Mrs O’Sullivan. Mr Wood acknowledged that that omission resulted from an error on his part.
Mr Wood’s letter of 7 August 1998 and draft documents
[35] On 7 August 1998 Mr Wood wrote to Mr Boyle enclosing a draft Acknowledgement of Debt and agreement for sale and purchase of Mrs O’Sullivan’s one-quarter share in the Waiheke property, which gave effect to Mr Boyle’s proposal of 4 August 1998, with some minor, and for present purposes, irrelevant differences.
Although it is not entirely clear from the evidence, no new draft of the Deed of Family Arrangement was sent with that letter so the existing draft, which provided for the $100,000 payment to come from the estate, remained current. It was, of course, inconsistent with the documents sent with the 4 August letter, which involved payment of the $100,000 by Mrs Bell.
Ms Dowell’s file notes
[36] Towards the end of August, Mr Wood sent a letter to Mr Boyle chasing up execution of the documentation sent to him earlier in the month. Mr Boyle was away at this time and the matter was dealt with by his colleague, Ms Dowell. Her file note of 2 September 1998 records a telephone conversation with Mr Wood. This records that she was told by Mr Wood that the arrangement involved quantifying Mrs Hutt’s interest in the Waiheke property at $100,000 (which would suggest that Mrs O’Sullivan’s entitlement would be $50,000), but then refers to the fact that Mrs Bell is to sign a Deed of Acknowledgement of Debt for $100,000. Again, there is an internal inconsistency and I do not think that much can be read into this file note, because it appears to be recording what Ms Dowell was told by Mr Wood rather than any view she had reached herself
[37] Perhaps more importantly there is a file note made by Ms Dowell, referring to a telephone discussion with Mrs O’Sullivan, which records that he told her that Mrs Hutt’s interest in the Waiheke property is over $100,000 but they had “agreed her share was $100,000 transferred to Judy”. However, it then goes on to say that Mrs Bell was to sign a Deed of Acknowledgement of Debt to Mrs O’Sullivan for $100,000 - again this appears to be internally inconsistent.
Ms Dowell’s fax of 7 September 1998
[38] On 7 September 1998 Ms Dowell sent a fax to Mr Wood recording that Mr and Mrs O’Sullivan were happy with the documentation, but making a specific reference to the clause which provided “the trustees shall pay to Judy the sum of $100,000” and asking for the reference to Judy to be changed to Vicky. Importantly, she did not raise any issue with the fact that the clause provided for this payment to be made by the estate (ie a payment which would yield a net figure to Mrs O’Sullivan of $50,000), rather than being a payment directly to Mrs O’Sullivan from Mrs Bell (which would yield a net payment to Mrs O’Sullivan of $100,000). To the extent that Ms Dowell was confused about matters, it was understandable in that she had had no previous involvement.
Mr Wood’s letter of 7 September 1998
[39] Mr Wood replied to Ms Dowell’s fax the same day and, in response to her reference to the clause I have just mentioned he said:
“Please note that we have amended Clause 1(b) in the Deed of Family Arrangement as the trustees will not now be paying the sum of $100,000 directly to Vicky, but Judy will instead be executing in Vicky’s favour a Deed of Acknowledgement of Debt and Agreement Mortgage.”
[40] Mr Wood did not specify the amount referred to in those documents, but it was $100,000. Unfortunately, he did not seem to appreciate that this was making a change which would effectively double the amount his client had to pay for Mrs O’Sullivan’s one-quarter interest in the Waiheke property.
[41] Mr Wood said in evidence that he had made an error in early August, which led to this change in the documentation. In his letter of 5 August 1998 to Mr and Mrs Bell he mistakenly referred to the interest being transferred from Mrs O’Sullivan to Mrs Bell as being a one-half share in the Waiheke property, when it was, of course, only a one-quarter share. If he had realised it was one-quarter, he may also have realised that the consideration would be $50,000, given the underlying economic transaction which he thought the parties had agreed to. However, he exacerbated his error by referring to the Acknowledgement of Debt from Mrs Bell to Mrs O’Sullivan as being for an amount of $100,000 rather than $50,000. Mr Wood was very frank in acknowledging that he was in error in this respect.
[42] The documentation was eventually signed, and arrangements made for Mrs Hutt’s half interest in the Waiheke property to be transferred by transmission to Mrs Bell and Mrs O’Sullivan in equal shares, and subsequently for Mrs O’Sullivan’s quarter share to be transferred to Mrs Bell.
The April 1999 telephone discussion
[43] The two sisters’ conflicting understanding of the arrangement did not come to light until April 1999 when there was a telephone conversation between Mrs O’Sullivan and Mrs Bell about the fact that Mrs Hutt’s former home at Blockhouse Bay (the Blockhouse Bay property) had not sold. Mrs O’Sullivan made a suggestion that she and Mr O’Sullivan buy the Blockhouse Bay property for $220,000. Mrs O’Sullivan suggested that she would need to pay Mrs Bell $20,000. Mrs Bell thought the amount of the payment would be $60,000. Her evidence was that Mrs O’Sullivan was “sheepish” when she said this. Further discussion revealed the problem. On Mrs O’Sullivan’s interpretation, the two sisters would receive $110,000 each if the Blockhouse Bay property sold for $220,000 and Mrs Bell would be required to pay $100,000 to Mrs O’Sullivan, meaning that Mrs O’Sullivan would receive a total of $210,000, and Mrs Bell would receive $10,000. On the other hand Mrs Bell understood that on the sale of the Blockhouse Bay property, the estate would pay $100,000 to Mrs O’Sullivan and the remaining $120,000 would be divided equally so that Mrs O’Sullivan would receive in total $160,000, and Mrs Bell $60,000.
Correspondence after discovery of the problem
[44] Mr and Mrs Bell then consulted Mr Wood. There was a telephone discussion between Mr Wood and Mr Boyle. Mr O’Sullivan contacted Mr Boyle by fax on 20 April 1999. It is clear from this fax that Mr O’Sullivan was not mistaken as to the effect of the documentation - he explicitly refers to the expectation that Mrs O’Sullivan would receive $100,000 from Mrs Bell. Mr Wood suggested a variation of the Deed of Family Arrangement be entered into, but Mr Boyle said it was not his client’s problem and that the insurers for Mr Wood’s firm would sort the matter out. Mr Wood then wrote to Mr Boyle and there was correspondence over the next two months between their two firms, in which the respective positions were debated without any consensus being reached, and with increasing degrees of acrimony between the law firms involved. Eventually these proceedings were issued.
Other discussions
[45] Reference was made in evidence to discussions at the time of Mrs Hutt’s funeral, at Mr and Mrs O’Sullivans’ wedding in March 1999, and to an earlier discussion in the presence of Mrs Hutt in the hospice before she died. The evidence as to whether those discussions took place and their nature was conflicting, and I do not find that they greatly assist me in making findings of the factual position.
Did Mrs O’Sullivan make a mistake, or know Mrs Bell had made a mistake?
[46] An important element of the case for Mrs Bell is the allegation that Mrs O’Sullivan was either mistaken herself, or knew that Mrs Bell was mistaken. To determine that, some analysis of the evidence of Mr and Mrs O’Sullivan and their lawyers is required.
Mrs O’Sullivan’s evidence
[47] In cross-examination, Mrs O’Sullivan steadfastly maintained that her intention right from the beginning was that she should receive $100,000 for her quarter share in the Waiheke property. She could not explain why, if the proposal had been put to her she would receive half that, her sister appeared then to have accepted a doubling of the figure without demur, or any negotiation whatsoever. She was asked about the fairness of the arrangement and somewhat surprisingly given the arrangement involved her own sister, maintained that fairness was “irrelevant”.
[48] Mrs O’Sullivan claimed that the $100,000 figure was based on her assessment of the valuation of the Waiheke property as being very high. She used the figures of $500,000 and $600,000 at different times. Evidence from a valuer was that the actual value was $375,000. Mrs O’Sullivan’s assessment was made without any valuation being undertaken or without any particular knowledge of the Auckland property market. She said that she believed the property was worth $600,000, that her quarter share was worth $150,000, but that since Judy and Robert (the Bells) had done all the work it was fair to leave $50,000 for them - hence the figure of $100,000. She said that she put something along those lines to Mr Boyle, although he did not refer to it in his evidence. However, he confirmed that her instructions to him were to obtain $100,000 for her quarter interest. She acknowledged that her mother’s financial interest in the property was $100,000.
[49] Mrs O’Sullivan also maintained that it was only during the April 1999 telephone discussion that it came to her attention that Mrs Bell’s expectation from the documentation was she (Mrs O’Sullivan), would receive $50,000 not $100,000. She said that, up until that period, she was unaware that Mrs Bell was mistaken. She denied she was “sheepish” when discussing the matter with Mrs Bell during the April 1999 telephone conversation.
Mr O’Sullivan’s evidence
[50] Mr O’Sullivan also steadfastly maintained in cross-examination that he and Mrs O’Sullivan were unaware of the mistake made by Mr and Mrs Bell and he had not thought it unusual that they had effectively agreed to pay double their original offer without any discussion having taken place. His explanation of the way the $100,000 was arrived at, was that in his view the Waiheke property was conservatively worth $400,000, a quarter of which is $100,000. This contrasts with Mrs O’Sullivan’s evidence of $600,000. Mr O’Sullivan’s fax to Mr Boyle after the problem was discovered (20 April 1999) referred to a value of $300,000. He said he and Mrs O’Sullivan had never been prepared to quantify Mrs Hutt’s interest at $100,000 and had seen her as owning and having a legitimate interest in a half share, which should be fully valued. Like Mrs O’Sullivan he said that it did not concern him greatly whether the outcome was fair or not. He denied Mrs Bell’s evidence that he had behaved “oddly” when he met her at the time of his wedding, which occurred prior to the April 1999 discovery of the mistake.
Mr Boyle’s evidence
[51] Mr Boyle confirmed that his instructions were that Mrs O’Sullivan was to receive $100,000 for her quarter share. He did not refer to the analysis suggested by Mrs O’Sullivan that the property was worth $600,000 and that her quarter share was therefore worth $150,000 but $50,000 should be left to Mr and Mrs Bell to reflect their work for Mrs Hutt. Mr O’Sullivan made no mention of that aspect either.
[52] Mr Boyle accepted that his letter of 8 May was ambiguous and may have contributed to the confusion. He could not explain why his first reaction to receiving the draft document from Mr Wood, which provided for the payment from the estate, was to pick up the typographical error (the reference to Judy not Vicky), in the crucial clause 1(b) but not to pick up the critical point that the document said the estate would pay this figure, not Mrs Bell, which appeared to mean his client would receive half what she had instructed him she wanted to receive. He acknowledged he had read the deed, and in particular that clause, but said he had only glanced over the document and did not pick up the discrepancy. At one point, he said he thought the reference in the draft deed to “the trustees shall pay to Vicky the sum of $100,000” meant that the trustees would pay this sum on behalf of Mrs Bell, rather than out of the estate. I find that explanation to be lacking in credibility. If such an interpretation were to be taken, the document would have said that the payment was to be made from one beneficiary’s share of the estate.
[53] 1 have already referred to the fact that Mr Boyle had no file notes of any of his discussions with his clients or Mr Wood. He was evasive when questioned on this by Mr Dale, saying he could not remember whether or not there were contemporaneous file notes on his file. In addition, Mr Boyle’s recollection of the nature of the discussions with his clients and with Mr Wood were hazy. He accepted that the file notes made by Ms Dowell indicated she had been told by Mrs O’Sullivan that Mrs Hutt’s interest in the Waiheke property was to be limited to $100,000 and that there was an internal inconsistency in those file notes. However, he maintained that the documentation as drafted reflected his instructions from his client and his understanding of what had been agreed.
[54] When the mistake was discovered in April 1999 and Mr Wood telephoned Mr Boyle, they discussed the issue. Mr Wood’s version was Mr Boyle said that it made no difference whether the payment was made from the estate or from Mrs Bell and it was only after Mr Wood took him through the figures that the difference became apparent. Mr Boyle acknowledged he and Mr Wood discussed figures, but said he could not recall saying the same result would be achieved either way.
[55] Mr Boyle recorded that his clients had told him the Waiheke property was worth $500,000 - this contrasted with the $400,000 figure put forward by Mr O’Sullivan and the $600,000 figure put forward by Mrs O’Sullivan which she thought she had mentioned to him.
[56] I have reached the conclusion, after hearing Mr Boyle’s evidence that his understanding of the nature of the transaction was no better than that of Mr Wood. Mr and Mrs O’Sullivan said they clearly instructed him that their position was Mrs O’Sullivan should receive $100,000 for her quarter share in the property. He acknowledged that was the case. Effectively that meant Mrs O’Sullivan was rejecting all of Mr Wood’s contentions that
• Mrs Hutt’s real economic interest in the Waiheke property was not properly reflected in the half interest recorded on the title;
• there was a need to execute documentation to correct that problem;
• Mrs Hutt’s real economic interest in the property was $100,000; and
• accordingly, whatever form the transaction took, the interest which Mrs O’Sullivan would eventually have should be valued at $50,000.
[57] The letter which Mr Boyle wrote to Mr Wood on 8 May 1998, gives no indication that there is any disagreement on any of these points. It records that Mrs O’Sullivan “does not necessarily accept” the documents and then gives various technical reasons relating to the Contracts Enforcement Act and the use of a power of attorney. It then suggests a way of effecting a resolution and says that one of the aspects of that would be that “Victoria will receive $100,000 and the balance of the estate will be divided equally between [Victoria and Judy]”. While I accept that one possible interpretation of that sentence is that Victoria will receive $100,000 from Judy, it is certainly not the interpretation which first springs to mind, given that there is a reference to “balance of the estate” immediately after it, which implies that the balance is what will remain after the payment of $100,000 from the estate. To suggest that this letter was evidence that Mr and Mrs O’Sullivan took issue with almost every aspect of the proposal put to Mrs O’Sullivan for her consent by Mr Wood lacks credibility.
Factual position: summary
[58] I summarise my findings on the facts as follows: Mrs Bell always thought that the underlying economic transaction was one whereby her mother’s half interest in the Waiheke property (or that of the estate after her mother died), would be transferred to her for $100,000. Accordingly, on a distribution from the estate, her sister would receive $50,000. Any variation of the proposal involving a distribution of a quarter-share in the property from her sister and a subsequent sale to her, would involve a transfer of the quarter share for $50,000.
[59] I accept Mrs O’Sullivan’s evidence that she always contended for, and expected to receive, $100,000 for her prospective interest in the property before her mother died, and her actual interest in the property after the transfer of the quarter share to her by the estate. I found both her and Mr O’ Sullivan somewhat evasive in their evidence and their accounts on some aspects were inconsistent as between themselves, and as between them and Mr Boyle their view of the value of the Waiheke property was a notable example of this. There were some indicators that Mrs O’Sullivan accepted Mrs Bell’s view of value, but in the end I do not find any of them decisive enough for me to make a finding that Mrs O’Sullivan was mistaken about the nature of the settlement (ie she thought she was to receive only $50,000 in economic terms), or that she knew all along that Mrs Bell was mistaken.
[60] While the reference in Mrs O’Sullivan’s 5 May fax indicates a clear understanding of the original proposals, it has to be acknowledged that the letter from Mr Wood to which her fax responded was internally inconsistent and her agreement with that letter can be interpreted either as an agreement to Mr Wood’s erroneous description of the original intention under which Mr Bell would pay $100,000 to her, or the proposal under which $100,000 would be paid to her mother. I also note the file note of Ms Dowell in which Mr O’Sullivan appears to acknowledge that the $100,000 figure represents Mrs Hutt’s interest in the estate, but again there is an internal inconsistency in this document because there is a later reference to a payment by Mrs Bell of $100,000. Again I do not find these references to be decisive.
[61] While I have some concerns that Mr and Mrs O’Sullivan may have taken advantage of the situation, I do not believe that the evidence before me justifies a finding that Mrs Bell has proved on the balance of probabilities that they did do so, or that they were mistaken. In this regard I note the standard of proof must be convincing. The position is well summarised in the following statement by Brightman LJ in Thomas Bates & Son Ltd v Wyndhams (Lingerie) Ltd [1981] 1 All ER 1077 at 1090:
“The standard of proof required in an action of rectification to establish the common intention of the parties is, in my view, the civil standard of balance of probability. But as the alleged common intention ex hypothesi contradicts the written instrument, convincing proof is required in order to counteract the cogent evidence of the parties’ intention displayed by the instrument itself. It is not, I think, the standard of proof which is high, so differing from the normal civil standard, but the evidential requirement needed to counteract the inherent probability that the written instrument truly represents the parties’ intention because it is a document signed by the parties.”
[62] That comment was cited with approval by Tipping J in Westland Savings Bank v Hancock [1987] [1987] 2 NZLR 21 at 26.
[63] As I have said, both Mr Wood and Mr Boyle had an inadequate appreciation of the nature of the transaction to properly advise their clients. If either of them had done so and clearly articulated their client’s position, then it is possible the mistake would not have occurred. However they did not, and as a result their clients were left in the position in which they now find themselves. From Mr and Mrs O’Sullivan’s point of view they were fortunate that the mistaken drafting in the document meant that it reflected the position that advantaged them.
Relief sought by Mrs Bell
[64] In the statement of defence filed on behalf of Mrs Bell, a declaration is sought that the contract be varied by directing that the sure of $100,000 be payable to Mrs O’Sullivan by Mrs Hutt’s estate, or so that the amount payable by Mrs Bell to Mrs O’Sullivan is $50,000. The reference to “contract” presumably refers to all of the documentation evidencing the contractual arrangement outlined in the Deed of Family Arrangement, including the Acknowledgement of Debt. The alternative relief sought is rectification of the Deed of Acknowledgement of Debt to the effect that the sum of $100,000 is payable to Mrs O’Sullivan by the estate of Mrs Hutt again, it would be necessary also to amend the Deed of Family Arrangement and other documentation properly to reflect such a change if the remedy of rectification were granted. Lastly, relief is sought under s 6(l)(a)(iii) of the Contractual Mistakes Act, being a variation of the contract in accordance with s 7(3)(c) along the same lines as the rectification sought earlier. I will deal with the rectification claim first.
Rectification
[65] Mr Dale referred me to the summary of legal principles relating to rectification set out by Fisher J in his judgment in Eldamos Investments Ltd v Force Location Ltd & Ors (High Court Auckland CP17/94, 22 February 1995). Fisher J summarised the position at p 9:
“[a] Oral evidence of a prior oral agreement as to some aspect or aspects of their forthcoming bargain is admissible to prove that the terms of the ultimate document do not reflect the intention which the parties held at the time that they executed it.
[b] It is sufficient to find a common continuing intention in regard to a particular provision or aspect of the agreement; it is not necessary that the preliminary understanding embrace all aspects of the ultimate bargain.
[c] It must normally be shown that the common intention as to the misrecorded aspect continued unchanged down to, and during, the execution of the document.
[d] However a special qualification to the requirement that the common intention continue until the document has been executed is that if one party’s misunderstanding of the document is appreciated by the other party, and the knowing party has stood by without drawing the mistake to the other party’s attention before it is executed, rectification is still available.
[e] Rectification is a discretionary remedy. It follows that all those factors such as delay and disqualifying conduct which affect discretionary equitable remedies in general bear upon the question whether rectification should be granted or withheld.”
[66] Mr McLeod argued that the “special qualification” set out in paragraph [d] of Fisher J’s summary was too broad and referred me to the formulation of Tipping J in Westland Savings Bank v Hancock at p.30 where he set out the four conditions required for rectification can be ordered as follows:
(1) That, whether there is in antecedent agreement or not, the parties formed and continued to hold a single corresponding intention on the point in question.
(2) That such intention continued to exist in the minds of both or all parties right up to the moment of execution of the formal instrument of which rectification is sought.
(3) That while there need be no formal communication of the common intention by each party to the other or outward expression of accord, it must be objectively apparent from the words or actions of each party that each party held and continued to hold an intention on the point in question corresponding with the same intention held by each other party.
(4) That the document sought to be rectified does not reflect that matching intention but would do so if rectified in the manner requested.
[67] Mr McLeod argued that those four conditions should be interpreted in the light of the further qualification suggested by Hammond J in Butler v Countywide Finance [1993] 3 NZLE 623 where he said:
“Without intending any disrespect whatsoever to the exhaustive judgment of Tipping J, I would simply add the following general statement as to the purpose of the doctrine of rectification in the law.
When somebody says there has been a mistake in relation to a contract (and particularly the subject-matter of a contract) the law is staring at a wide spectrum of possible responses. Rescission - on the basis of mistake - would, in general terms, leave the parties with no contract, any money refunded, and no obligations to each other. Rectification, on the other hand, leaves them both obligated on a contract. And rectification, as I see it, is available for only one kind of mistake; where the writing misstates the parties’ actual agreement. The legal theory behind this has to be that the Court is determining the parties’ real agreement, not making an agreement for them.”
[68] It is clear from Fisher J’s judgment in Eldamos that he was not suggesting that his special qualification displaced the need to prove a common intention, rather he was allowing for an exception to the principle which he had outlined in paragraph (c) of his summary, to the effect that the common intention as to the misrecorded aspect of the contract must continue unchanged, down to and including execution of the document. The exception does not override the need for a common intention, rather it overrides the need to prove that this common intention continued during the execution of the document. If it can be shown that the document has been executed in circumstances where one party misunderstands it and the other party knows that the first party misunderstands it and does nothing to draw the mistake to the first party’s attention, then rectification will be available. I can see no reason to dispute the existence of the qualification as outlined by Fisher J; its nature and extent are clearly enunciated in his summary of the legal position in Eldamos, nor do I believe that an application of that special qualification conflicts either with the summary of Tipping J in Westland Savings Bank v Hancock or the additional qualification suggested by Hammond J in Butler v Countrywide Finance.
[69] In view of my findings of fact I do not find a common continuing intention in relation to the contractual arrangement between Mrs O’Sullivan and Mrs Bell - for reasons already outlined I accept Mrs O’Sullivan’s evidence that she did not intend that the $100,000 would be paid from the estate, or that she would be paid $50,000 by Mrs Bell. That being the case, it cannot be said this was a situation where there was a common intention, and the documentation was signed in circumstances where Mrs O’Sullivan knew that it did not reflect that common intention, but stood by without drawing the mistake to Mrs Bell’s attention. Accordingly, applying the test as outlined in Eldamos, the case for rectification fails.
[70] For completeness I deal with the other arguments made by Mr McLeod against rectification. His first was that it would be unfair to allow rectification because the half share which Mrs Hutt had in the Waiheke property was worth approximately $200,000. I do not accept that argument. The assessments of value by Mr and Mrs O’Sullivan varied from $300,000 to $600,000 on their own evidence. In order to establish the unfairness, it would be necessary to find that Mrs Hutt did have a legitimate entitlement to a half interest in the property. In my view, the evidence establishes otherwise and if anything had turned on it I would have been prepared to find that Mr and Mrs Bell had established that it had been agreed with Mrs Hutt interest that her interest was limited to $100,000. That is not to say, however, that Mrs O’Sullivan had actual knowledge of that arrangement or that she accepted it.
[71] Mr McLeod’s next argument was rectification was discretionary, and I should refuse it in this case because of delay on the part of Mrs Bell. The argument was based on the fact that Mrs O’Sullivan had been forced to bring the proceedings and Mrs Bell had “just sat back and sought to defend her position”. I reject that argument also. If this had been a case in which the common intention was shown to be as outlined by the defendant, the delay, such as it was, could not be said to have disadvantaged Mrs O’Sullivan in any way, or provided justification for denying rectification.
Mistake known to the other party
[72] I now turn to the claim for relief based on a mistake made by Mrs Bell which was known to Mrs O’Sullivan. The essence of the claim made on behalf of Mrs Bell is that Mrs O’Sullivan knew at the time that the documentation was signed that Mrs Bell had not agreed to pay $100,000 from her own resources, ie that her intention was that the payment would be made from the estate, or would be a payment from her to Mrs O’Sullivan of $50,000. This relies on s 6(1)(a)(i) of the Contractual Mistakes Act which allows for relief to be granted if, in entering into a contract a party “was influenced in his decision to enter into the contract by a mistake that was material to him, and the existence of the mistake was known to the other party”. In view of my finding that Mrs Bell has not proven to the necessary standard that Mrs O’Sullivan knew of the mistake, this claim must also fail. If I had found such a claim had been substantiated, I would have been prepared to grant relief on the basis that there was a substantially unequal exchange of values.
[73] Mr Dale argued that, in circumstances where I was not prepared to find that Mrs O’Sullivan knew that Mrs Bell had not agreed to the payment of $100,000 from herself rather than the estate, relief could still be granted if I found both Mrs O’Sullivan and Mrs Bell were honestly but mistakenly of the opinion that the other side had agreed. I have made such a finding, but the question which remains is whether that finding is a foundation for a successful claim under the Contractual Mistakes Act. Mr Dale argues that it is because each party has been influenced in entering into the contract, on a mistaken assumption, and that must have been known to each of them, so it comes within the scope of s 6(1)(a)(i). I do not accept that submission. While each appears to have been mistaken as to the other party’s state of acceptance of the contractual terms as written in the documentation, neither appears to have been aware that the other was mistaken and so the requirement that the existence of the mistake be known to the other party is not made out.
Mistake by both parties as to the value of Mrs Hutt’s interest
[74] The third counterclaim is based on s 6(1)(a)(iii) of the Contractual Mistakes Act which permits the granting of relief if, in entering into a contract, a party “and at least one other party (not being a party having substantially the same interest under the contract as the party seeking relief) were each influenced in their respective decisions to enter into the contract by a different mistake about the same matter of fact or of law.” Mr Dale indicated in his opening that he would not pursue this aspect of the claim, but then decided to do so at the time of closing, having heard the evidence from all parties. Mr McLeod objected to this on the basis that cross-examination of the defence witnesses was not specifically directed at the allegation made in respect of this defence. He did however, make submissions on the point in his closing and I do not believe there has been any substantial prejudice to his client’s position. Accordingly I will make a ruling on the application of s 6(1)(a)(iii) of the Contractual Mistakes Act.
[75] The matter of fact or law in respect of which Mr Dale argued both parties were mistaken, was the value to be ascribed to Mrs Hutt’s (or her estate’s) interest in the Waiheke property. Mrs O’Sullivan thought the figure was $200,000 and her sister had agreed to that amount, while Mrs Bell thought it was $100,000 and her sister had agreed to that amount. Mr Dale argued these were not mistakes of interpretation but were about the fundamental basis on which the parties entered into the contract.
[76] Mr McLeod argued strongly that the mistake, to the extent that there was one, was simply a mistake as to the correct interpretation of the Deed of Family Arrangement and the Acknowledgement of Debt. Accordingly s 6(2)(a) of the Contractual Mistakes Act applies, because the mistake is in the interpretation of a contract and therefore is excluded from the category of mistakes in respect of which relief can be given under s 7 of the Act.
[77] I do not accept Mr Dale’s submission in relation to s 6(1)(a)(iii). The true nature of the mistake on the Bell side was the misinterpretation of the meaning of the documentation by Mr Wood which was communicated by him to Mrs Bell when he explained the documentation to her. Thus is a mistake of interpretation of the kind precluding relief, as found in Shotter v Westpac Banking Corporation [1988] 2 NZLR 316 and Paulger v Butland Industries Ltd [1989] 3 NZLR 549. The evidence does not establish that both parties were mistaken as to the value of the estate’s interest in the land. While the lack of any negotiation between them may justify a finding that each thought the other had agreed to her point of view, the documentation did record Mrs O’Sullivan’s viewpoint. In that sense, the documentation does not reflect any mistake on Mrs O’Sullivan’s part at all. Mrs Bell’s misinterpretation of the legal effect of the documents (because of the nature of the advice given to her by Mr Wood), led her to believe that the documentation’s effect was the one she was contending for. In those circumstances I do not believe that the requirements of s 6(1)(a)(iii) are made, and I decline relief accordingly.
Relief sought by Mrs O’Sullivan
[78] I therefore find that the counterclaims made on behalf of Mrs Bell fail, and that Mrs O’Sullivan’s case succeeds. The relief sought in the original statement of claim was an order directing that the Blockhouse Bay property be sold, the sale proceeds divided equally between the parties and that Mrs Bell pay to Mrs O’Sullivan the sum of $100,000. I understand that the parties have now agreed to the sale of the property, but I order that, upon the sale proceeding, Mrs Bell pay to Mrs O’Sullivan the sum of $100,000 from the sale proceeds.
[79] There was an alternative claim for immediate payment of the sum of $100,000 plus interest, based on an apparent breach by Mrs Bell of the requirement in the Acknowledgement of Debt that she execute a mortgage over her interest in the Blockhouse Bay property to secure the debt if called upon to do so. In view of the apparent agreement as to the sale of the property, I am reluctant to make such an order and decline to do so at this stage, but reserve the right for Mrs O’Sullivan to make further submissions if that remedy is still sought or if a formal order that the Blockhouse Bay property be sold is still required. Such submissions should be made within 21 days of the date of this judgment, with any reply from the defendant to be made within 14 days after the date of the plaintiff’s submissions.
Costs
[80] I also reserve the position in relation to costs. In the absence of agreement on costs, submissions should be made, following the same timetable as set out above.
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