Sillick v Sillick

[2018] NZHC 1854

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV 2017-488-0039

[2018] NZHC 1854

UNDER

section 339 of the Property Law Act 2007

IN THE MATTER

of an order regarding division of property amongst co-owners

BETWEEN

FRANZINA DE ANNA SILLICK

Plaintiff

AND

BRIAN EARL SILLICK

First Defendant

DAWN KELLY SILLICK

Second Defendant

Hearing:	On the papers
Appearances:	P M Webb for the plaintiff
Judgment:	25 July 2018

JUDGMENT OF JAGOSE J

[Further orders]

This judgment is delivered by me on 25 July 2018 at 4.00pm pursuant to r 11.5 of the High Court Rules.

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

Registrar / Deputy Registrar

Solicitors:

Denham Bramwell, Auckland

And to Parties:

SILLICK v SILLICK & ANOR [2018] NZHC 1854 [25 July 2018]

[1]                 At [14(1)] of my judgment dated 23 March 2018, under s 339(1) of the Property Law Act 2007, I ordered:

… 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 …

and reserved leave to the plaintiff “to apply for any necessary consequential orders”.

[2]                 Section 339(4) enables me to make further orders specified in s 343, including as “provides for, or requires, any other matters or steps the court considers necessary or desirable as a consequence of the making of the order under section 339(1).” Although s 341(2) may require an application for related orders under s 339(4) to be served on the defendants,1 s 341(3) permits me “by order made on an application for the purpose, [to] change, or dispense with service on, the people who must be served under subsection (2)”.

[3]                 The plaintiff now brings an interlocutory application without notice for orders to enforce my judgment, on grounds the defendants are obstructing its execution. The first defendant occupies the property. The orders sought are two-fold: to secure the property’s sale, and then to obtain its vacant possession.2

[4]                 In terms of High Court Rule 7.46, I am satisfied requiring the plaintiff to proceed on notice for the former orders would cause undue delay or prejudice to her, and the interests of justice require so much of the application to be determined without serving notice of it.

[5]                 The first defendant has disregarded the proceeding throughout, and may have warned the plaintiff’s agents not to ‘trespass’ on the property. The second defendant is actively obstructing implementation of my order, contending to be entitled to $10,000 per page of any document required for her signature. My judgment is clear in its

1      … “if not already a party to the proceeding on that application … ” (emphasis added).

2      The application also seeks “legal costs incurred as a result of these orders will be borne by the first [defendant] to be paid from his share of the proceeds of the sale of the property”. My earlier orders provided at [14(2)] “all outstanding expenses relating to the property and its sale … be paid from the proceeds of sale”, and at [14(4)] “the outgoings on the property (but not in relation to its sale) be allocated to Brian for the period of his occupancy” (emphasis added). I apprehend the ‘legal costs’ sought relate only to the latter orders now sought against the first defendant, in relation to his continued occupancy rather than the anticipated sale.

reasons and effect; no application for stay pending any appeal has been filed; and the plaintiff has already incurred substantial effort and expenditure to regularise matters. The interests of justice require my order’s efficient implementation.

[6]                 I therefore determine the plaintiff’s application for the former orders can properly be dealt with without notice. Such orders are necessary or desirable in consequence of my sale order.

[7]                 However, I am not satisfied requiring the plaintiff to proceed on notice for the latter orders would cause undue delay or prejudice to her, or the interests of justice require that part of the application to be determined without serving notice of it. That is because the latter orders, requiring the first defendant to give vacant possession or evicting him from the property, are presently anticipatory on the property’s sale, and cannot properly be dealt with without notice. I grant the plaintiff leave to proceed on notice for the latter orders, which may be sought by separate application.

[8]I therefore further order:

(a)service of the plaintiff’s application dated 16 July 2018 on the defendants is not required;

(b)the Registrar is empowered to execute any document required to be executed by either or both defendants to:

(i)list the property for sale;

(ii)conclude a sale and purchase agreement;

(iii)give authority and instruction to lodge a dealing for registration under section 164A of the Land Transfer Act 1952; and

(iv)otherwise to give effect to the order set out at [14(1)] of my judgment dated 23 March 2018 (the “order”); and

(c)the sale and purchase agreement required to give effect to the order is to contain a condition the property is sold with vacant possession.

[9]                 To avoid doubt, leave remains reserved to the plaintiff to apply for any further orders.

—Jagose J