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 ……

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sillick v Sillick

Details

AGLC: Sillick v Sillick [2018] NZHC 1854
Case: [2018] NZHC 1854
Decision Date: 25 July 2018

CaseChat Overview and Summary

The case of Sillick v Sillick involves a dispute between Franzina de Anna Sillick and Brian Earl Sillick, with Dawn Kelly Sillick also named as a defendant. The matter was brought before the High Court of New Zealand, Whangarei Registry, under section 339 of the Property Law Act 2007. The primary issue at hand was the division of property among co-owners, specifically regarding the sale of a property at 193 Okahu Road, Ahipara, Kaitaia. The plaintiff sought enforcement of a previous court order directing the sale of the property and obtaining vacant possession, citing obstruction by the defendants.

The legal issues that the court had to address included whether the plaintiff's application for enforcement could proceed without notice to the defendants and whether the court could dispense with the requirement to serve the defendants under certain circumstances. The court examined whether requiring notice would cause undue delay or prejudice to the plaintiff, and if the interests of justice warranted a decision without notice.

The court determined that the plaintiff's application for the enforcement of the sale order could be dealt with without notice due to the defendants' disregard of the proceedings and active obstruction. The court found that the plaintiff had already incurred significant effort and expenditure to regularise the matter, and the interests of justice required efficient implementation of the order. However, the court held that the orders requiring the first defendant to give vacant possession or evicting him from the property were anticipatory and could not be dealt with without notice. The court granted leave for the plaintiff to apply separately for these latter orders.

The final orders of the court were that service of the plaintiff’s application on the defendants was not required, the Registrar was empowered to execute necessary documents to effect the sale of the property, and the sale and purchase agreement must include a condition that the property is sold with vacant possession. The court also reserved leave to the plaintiff to apply for any further orders.

Orders