Taylor v Conroy - [2024] NZHC 2210

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1361

[2024] NZHC 2210

UNDER Section 339 of the Property Law Act 2007 and Part 19 of the High Court Rules 2016

BETWEEN

CHRISTOPHER GEORGE TAYLOR AND MGH TAYLOR LIMITED AS TRUSTEES OF THE LE ROY TRUST

Applicants

AND

HELEN MIRIAM CONROY AND MGH CONROY LIMITED AS TRUSTEES OF THE HAWKRIDGE DOOLITTLE TRUST

Respondents

Hearing: on the papers

Counsel:

W E Andrews for applicants

A M E Parlane for respondents

Judgment:

8 August 2024

JUDGMENT OF JOHNSTONE J

(costs and sale directions)

Solicitors:
Pidgeon Judd, Auckland Parlane Law, Auckland

TAYLOR v CONROY [2024] NZHC 2210 [8 August 2024]

[1] Upon issuing my judgment of 5 June 2024 in this proceeding,1 I made an order under s 339(1) of the Property Law Act 2007 that the property at Wilson Road, South Head (Property), held by the trustee parties as tenants in common, is to be sold.

[2] I directed the parties to confer with a view to agreeing comprehensive directions for sale, and the filing of memoranda on that issue and costs if they could not be agreed. Memoranda have been filed. Assisted by those memoranda, I now make directions for sale and as to costs.

The Taylor trustees’ position

[3] The Taylor trustees seek costs on a 2B basis against the Conroy Trust, and directions, in essence that:

(a)Ms Conroy and any other occupants vacate the property;

(b)the Taylor trustees engage a named real estate agent to sell the property without warranties, including by signing the listing agreement and marketing documents, and that their solicitors attend to matters of conveyancing;

(c)the Registrar is authorised to sign documents required to facilitate title transfer;

(d)sale costs and any outstanding rates and utilities are deducted from sale proceeds;

(e)net sale proceeds are distributed:

(i)85 per cent to the Taylor trustees; and

(ii)15 per cent, less Court costs and disbursements in this proceeding, to the Conroy trustees.

1 Taylor v Conroy [2024] NZHC 1467.

[4]They also seek leave to apply for further necessary directions.

Ms Conroy’s position

[5] On costs, Ms Conroy submits that the Court is without jurisdiction to award costs against the fund of the Conroy Trust. She relies on s 45(2) of the Legal Services Act 2011 in submitting that no costs can be awarded against her, and accordingly, in line with “the justice of the situation”, costs should not be ordered except against MGH Conroy Ltd.

[6] Further, Ms Conroy submits that she should be awarded costs in respect of the Taylor trustees’ original application, which sought an order removing her as a trustee as well as an order for sale of the Property.

[7]On sale directions, Ms Conroy:

(a)seeks until 3 September 2024 to vacate the Property;

(b)requests that she also sign the listing agreement, and be entitled to see an itemised list of sale costs before agreeing to their deduction;

(c)submits that costs unrelated to conveyancing or the process…

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 Taylor v Conroy

Details

AGLC: Taylor v Conroy [2024] NZHC 2210
Case: [2024] NZHC 2210
Decision Date: 8 August 2024

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, Christopher George Taylor and MGH Taylor Limited, as trustees of the Le Roy Trust, have brought an application against Helen Miriam Conroy and MGH Conroy Limited, as trustees of the Hawkridge Doolittle Trust. The dispute concerns the sale of a property located at Wilson Road, South Head, which is held by the trustee parties as tenants in common. The central legal issue the court was required to address was the allocation of costs and the issuance of directions for the sale of the property. The applicants sought costs on a 2B basis against the Conroy Trust, along with specific directions for the sale process, including the vacating of the property by Ms Conroy, the engagement of a real estate agent by the applicants, and the distribution of the net sale proceeds. Conversely, Ms Conroy argued against the award of costs against her personally and sought to delay the sale to allow her more time to vacate the property. The court determined that Ms Conroy was to meet the applicants' costs and disbursements, as she unreasonably pursued her personal interests at the expense of acting responsibly in the best interests of the trust. Additionally, the court ordered that Ms Conroy vacate the property by 3 September 2024 and directed the sale to proceed with specified arrangements for the listing agreement, conveyance, and distribution of sale proceeds. The court concluded that Ms Conroy was to pay the applicants' costs in the proceeding, assessed on a 2B basis, and the net sale proceeds were to be distributed according to the court’s directions.

The court also ruled on various procedural aspects of the sale, including the engagement of a real estate agent by the applicants without warranties, the requirement for Ms Conroy to vacate the property, and the manner in which costs and disbursements would be deducted from the sale proceeds. The court emphasized that direct sale costs, such as the real estate agent's fees and outstanding rates and utilities, would be deducted from the gross sale proceeds, while the applicants' costs in the proceeding would be deducted from the Conroy Trust's share of the net sale proceeds. The court left the door open for further directions if necessary, ensuring that the sale process would proceed efficiently and transparently.

Orders