Sillick v Sillick

[2020] NZHC 282

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-488-000039

[2020] NZHC 282

IN THE MATTER

of an interlocutory application on Notice for Further Orders

BETWEEN

FRANZINA DE ANNA SILLICK

Applicant

AND

BRIAN EARL SILLICK

First Respondent

AND

DAWN KELLY SILLICK

Second Respondent

Hearing:	On the papers
Judgment:	26 February 2020

JUDGMENT OF HINTON J

[Further orders]

This judgment was delivered by me on 26 February 2020 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Denham Bramwell, Manukau

SILLICK v SILLICK [2020] NZHC 282 [26 February 2020]

Introduction

[1]The plaintiff (applicant) applies for orders for vacant possession.

[2]        On 23 March 2018, Jagose J gave judgment for the applicant and ordered the sale of the property she owns as tenant-in-common with the first and second defendants (respondents), Mr Brian Sillick and Ms Dawn Sillick, and division of the proceeds among the co-owners pursuant to s 339 Property Law Act 2007 (the Act).1

[3]        Leave was reserved to the applicant to apply for any necessary consequential orders.2 The applicant now seeks the making of these orders.

[4]        This matter has come before me because of my previous involvement in it. On 17 August 2017, I gave an interim judgment aimed at facilitating potential resolution of the parties’ dispute.3 Clearly those alternative proposals did not come to fruition.

Background

[5]        The property belonged to the respondents’ mother, who was the applicant’s grandmother, who willed it to the parties. The applicant and Mr Sillick each hold 37.5 per cent shares in the property and Dawn Sillick a one-quarter share.

[6]        The applicant has no wish to retain co-ownership of the property. Jagose J accepted that Mr Sillick was in occupation of the property and had been since his mother’s death and had made no contribution to its running costs. By June 2018, more than $22,000 had accrued in unpaid property and water rates. Communications with the Council had not, at the time of Jagose J’s judgment, provided definitive resolution of the Council’s claim in respect of those rates. As Jagose J noted, Mr Sillick’s failure to satisfy the liabilities on the property was in breach of a stipulation as to his continued occupation in the will.4

1      Sillick v Sillick [2018] NZHC 510.

2 At [15].

3      Sillick v Sillick [2017] NZHC 1969.

4      Above n 1 at [10(4)].

[7]        The Judge considered that the applicant is the only owner of the three who had any prospect of meeting the outgoings on the property, but she had already met many of the costs incurred by the estate and could not afford to continue the expenditure.5 The respondents had each contributed less than $400 to the costs of the property.6

[8]        Having considered these points, the fact no achievable alternative to the proposed orders had emerged,7 and having weighed the necessary matters,8 Jagose J was satisfied that the hardship to Mr Sillick and Dawn Sillick if the property were to be sold was outweighed by the hardship to the applicant of continuing co-ownership.9

[9]        In saying this, the Judge acknowledged,10 as had I,11 that the property may be viewed by some as the parties’ turangawaewae and that, had alternative proposals come to fruition, keeping the property in family ownership would have been desirable. That, as I have noted, is unfortunately something that has not eventuated.

[10]Accordingly, the Judge made orders that:

(1)the property at 193 Okahu Road, Ahipara, Kaitaia, being all that parcel of land identified as NA37B/107 in the North Auckland Land Registration District, be sold under the Registrar’s supervision, with leave to refer to the Court where necessary;

(2)all outstanding expenses relating to the property and its sale (including, to avoid doubt, expenses of $5,284.38 owed to Fran, and

$250.00 owed to Dawn) be paid from the proceeds of sale;

(3)the balance of the proceeds of sale be divided between the parties in accordance with their shares in the property;

(4)the outgoings on the property (but not in relation to its sale) be allocated to Brian for the period of his occupancy of the property after Lucy’s death; and

(5)the balance of the proceeds of sale be distributed accordingly.

5      At [10(6)].

6      At [10(7)].

7      At [3], referring to the alternative proposals canvassed in my interim judgment.

8      Property Law Act 2007, s 342.

9 Above n 1 at [12].

10 At [12].

11 Above n 3 at [3].

[11]      As noted, Jagose J reserved to the applicant leave to apply for any necessary consequential orders. On 25 July 2018, he granted such an application.12 The Judge noted that the first respondent, Brian Sillick had “disregarded the proceeding throughout” and had allegedly purported to prevent the applicant’s agents ‘trespassing’ on the property.13 The second respondent, Dawn Sillick, had demanded $10,000 for each page she was required to sign.

[12]      Determining the interests of justice required the sale order’s efficient implementation,14 the Judge relied on the Court’s jurisdiction to make further orders as specified in s 343 of the Act ancillary to the sale order made under s 339, namely orders allowing the Registrar to execute documents necessary to list the property for sale, sell the property, and register the transfer.

[13]      The Judge also, importantly for present purposes, directed that the sale and purchase agreement required to give effect to the order is to contain a condition the property is sold with vacant possession.15

[14]      The Judge declined to make orders like those sought on the present application, saying they were unable to be dealt with on a without notice basis.16 Leave was reserved to apply, on notice, for the making of such orders.17

The Present Application

[15]      That application has now been made. The applicant applies on notice for orders requiring the first respondent or any other person in occupation to give vacant possession of the property on or before 5 pm on 13 March 2020 and, unless the first respondent earlier gives vacant possession, ordering the Police to assist in the removal of him and his possessions from the property, ordering the first respondent to bear the applicant’s costs of obtaining these orders, and consequential orders.18

12     Sillick v Sillick [2018] NZHC 1854.

13 At [5].

14 At [5].

15 At [8].

16 At [7].

17 At [7].

18 The application for orders was made without notice on 21 January 2020. By minute dated 23 January 2020, Fitzgerald J directed that counsel for the applicant file an updating memorandum on or before 7 February 2020. A memorandum was filed on 11 February 2020. Service of the

[16]      In an updating memorandum dated 21 February 2020, counsel for Ms Sillick advises the sale process is underway, with tenders having closed on 20 February 2020. Counsel advises there are compliant tenders that will be able to be accepted. Contractually, Ms Sillick is obliged to accept the successful tender by 27 February 2020. The orders are sought as a matter of urgency to allow the sale to proceed.

[17]      In support of this application, the applicant has filed an affidavit sworn 15 January 2020 by Mr James Broadbent, an experienced real estate agent who has been instructed in relation to the sale of the property. He has had a number of dealings with the respondents, who he describes as having been aggressive in obstructing him from, for example, putting up a for sale sign on the front fence of the property. He advises that sign was removed within hours of it being installed. His opinion is that Mr Sillick will not voluntarily leave the property.

[18]No steps have been taken by the respondents.

Jurisdiction

[19]      Ordinarily, one might have expected a matter like this to be dealt with by way of an application for enforcement made pursuant to Part 17 of the High Court Rules.

[20]      However, r 17.2 makes clear that Part does not apply to the enforcement of orders made on an interlocutory application, such as those the applicant now seeks to enforce. This is despite the fact that in some cases, such as this, orders made on an interlocutory application can be just as “final” a determination of the parties’ rights as an order made in a judgment,19 such that one might think judgment ought to be available.20 Nonetheless, r 17.2 is clear that the enforcement procedures in Part 17 are unavailable to the applicant in this matter.

interlocutory application, counsel of memorandum in support of the application, Mr Broadbent’s affidavit in support, and the Minute of Fitzgerald J on each respondent was effected on 11 February 2020.

19 See Shaw v Hertfordshire County Council [1989] 2 QB 282 (CA) at 285.

20 See A C Beck and others McGechan on Civil Procedure (looseleaf ed, Thomson Reuters) at [HR17.2.01] for criticism of the position.

[21]      The applicant has instead sought these orders in reliance on the inherent jurisdiction of the Court to ensure its orders are given effect.21 For my part, I would also think that s 343(g) of the Act assists the applicant. While orders like those sought are not expressly contemplated in s 343, s 343(g) is broadly drawn, providing for the making of orders as to “any other matters or steps the court considers necessary or desirable as a consequence of the making” of an order under s 339.22 That phrase is broad enough to accommodate the present application. It follows that, on either basis, I consider I have the necessary jurisdiction.

Evaluation and Result

[22]      Mr Sillick has plainly disregarded this proceeding throughout. Equally plainly, his attitude, as well as his sister’s, has turned from disregard to hostility as matters have progressed in a manner unfavourable to him. The available evidence of events since Jagose J’s judgment of 25 July 2018 suggests Mr Sillick is now actively obstructing the sale process. With, it appears, tenders for the property now having closed, and the successful tender having to be accepted tomorrow, his intransigence may well very shortly begin to amount to contempt, albeit that is not quite yet the case.

[23]      However, if Mr Sillick fails to facilitate the sale order being carried into effect by remaining in possession of the property, he will then be actively frustrating the carrying into effect of the sale order. This will prejudice the applicant, his sister, and himself, in particular because of the penalty interest that the applicant indicates will become payable to any purchaser if settlement cannot occur. Jagose J ordered that it be a condition of sale that the property be sold with vacant possession so as to ensure that the dispute can now be ended.

[24]      Further intransigence in the face of this Court’s previous orders will carry with it adverse consequences in terms of the further orders made below.

21  Such a jurisdiction was apparently accepted to exist in Official Assignee v Mathiesen [2018] NZHC 843. This jurisdiction will be considerably modified by the coming into force of the Contempt of Court Act 2019 as from 27 August 2020 or such earlier date as is provided for by Order in Council: Contempt of Court Act 2019, s 2. That statute has not yet however commenced in force.

22 See also ss 343(c) and (d) of the Property Law Act 2007 in respect of the second made order.

[25]      So as to prevent frustration (in the common, not legal, sense of that term) of the sale agreement, I make orders that:

(a)Brian Sillick and any other person in occupation of 193 Okahu Road, Kaitaia are, on or before 5 pm on Friday 13 March 2020, to give vacant possession of the property situated at 193 Okahu Road, Kaitaia, being all that parcel of land identified as NA37B/107 in the North Auckland Land Registration District, to the applicant; and

(b)the applicant’s actual and reasonable costs incurred in obtaining this order will be borne by the first respondent, to be paid from his share of the proceeds of the sale of the property.23

[26]      The applicant has also applied for orders providing for Mr Sillick’s eviction from the property in the event that he fails to give over vacant possession. The application for these orders having now been made on notice, unlike before Jagose J, and the sale of the property being so imminent as to render it impracticable to require the applicant to return to Court in the event of further non-compliance, I consider it appropriate to exercise my inherent jurisdiction to make the following order.

[27]      I order that, should Mr Sillick or any other person in occupation of the property fail to comply with my order made at [25(a)] above before 5:01 pm on Friday 13 March 2020, the Sheriff at Whangarai, or the Sheriff’s duly authorised agent, together with any serving police officer, will then be authorised to:24

(a)enter the property at 193 Okahu Road, Kaitaia and use such force to enter the property or any part of it as may be reasonably necessary;

(b)remove the first respondent and any other person in occupation of the property from the property and use reasonable force as may be reasonably necessary to do so;

23     High Court Rules 2016, r 14.6(4)(b).

24     These orders are adapted from those given by Dunningham J in Official Assignee v Mathiesen, above n 21.

(c)remove, or have removed by agents duly authorised or appointed for that purpose, any personal possessions of the first respondent and any other person in occupation of the property from the property to such other address as the first respondent or other person may nominate or, failing the provision of such address, such storage facility as the agent may reasonably nominate, with the costs and expenses, if any, of the removal and/or storage of these possessions to be borne by the first respondent out of his share of the proceeds of sale.

[28]      Leave is reserved to the parties to revert to the Court should any further or amended orders or directions be required to give effect to these orders or any previous order of the Court. As it is, my hope is that the above provisions for Mr Sillick’s final removal from the property, allowing its sale, will finally bring this matter to an end.

Hinton J