Thomas v O'Hare HC Wanganui CIV 2007-483-200

[2007] NZHC 2024

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV 2007-483-200

BETWEEN  DIANE MARIE THOMAS Plaintiff

AND  BRIAN RUSSELL O'HARE Defendant

Video Conference

Hearing:  22 August 2007

Appearances:             Mr G Mason for Plaintiff

Mr D N Rimmer for Defendant

Judgment:                  22 August 2007

ORAL JUDGMENT OF ASSOCIATE JUDGE GENDALL

Solicitors:

Mr G Mason, Barrister, Palmerston North

Mr D N Rimmer, Solicitors, Wanganui

THOMAS V O'HARE HC WANG CIV 2007-483-200  22 August 2007

[1]      Before the Court is an application for summary judgment by the plaintiff seeking orders pursuant to s 140 Property Law Act 1952 for the sale of a property at

5 Rimu Street, Wanganui, and for the division of sale proceeds.

[2]      Mr  Mason,  counsel  for  the  plaintiff,  and  Mr  Rimmer,  counsel  for  the defendant appeared before me today, 22 August 2007.

[3]      A measure of agreement between the parties appears to have been reached.

[4]      By consent an order is now made pursuant to s 140 Property Law Act 1952 for the sale of the property at 5 Rimu Street, Wanganui.

[5]      The following additional orders are made with respect to this sale:

a)       Mr Phillip Sunderland of Palmerston North is appointed to conduct and manage this sale process and is appointed as a trustee pursuant to s 141 Property Law Act 1952 to manage the sale proceeds;

b)        the sale is to be by way of private treaty;

c)       Mr Sunderland is to obtain a valuation of the property within the next one month from a registered valuer;

d)Mr Sunderland thereafter is to appoint a reputable local real estate agent to properly market the property for sale and to attend to the sale process.

[6]      The property is to be sold for the best achievable value taking into account the registered valuation which is to be obtained.

[7]      Mr Sunderland is also to attend to all conveyancing with respect to the sale of the property.

[8]      Once the sale is completed and all mortgages and other encumbrances on the property are properly repaid, Mr Sunderland  is to hold the net  sale proceeds as trustee in accordance with s 141 Property Law Act 1952.

[9]      In the absence of agreement between the parties as to a division of the sale proceeds Mr Sunderland  is to approach the Court  with a proper  application  for directions as to a distribution of those sale proceeds.

[10]     With respect  to  the summary judgment  application  before the Court,  Mr

Mason for the plaintiff seeks costs.

[11]     Mr Rimmer for the defendant advises that the defendant is legally aided.

[12]     Notwithstanding this, Mr Mason seeks a direction from the Court as to the amount  by way of costs which would have been awarded  in the  event  that the defendant was not in receipt of a grant of legal aid in this matter.

[13]     That in my view is appropriate here.

[14]     In the event that the defendant was not legally aided in this matter an award of costs would have been made in favour of the plaintiff with respect to the present summary   judgment   application   upon   a   category   2B   basis   together   with disbursements as fixed by the Registrar.

[15]     The following additional directions are to be included in the orders that I

have just made, and they are to read as follows:

a)       Phillip James Sunderland is entitled to charge a reasonable amount for his services in this matter and to engage and pay for any other persons whose advice and services may be reasonably required to enable him to properly perform his role as trustee herein.  In addition, the liability of Phillip James Sunderland in this proceeding is not personal but as a trustee in terms of s 141 Property Law Act 1952, and this liability is restricted at all times to such funds of the parties as he may be holding from time to time.

b)       Leave is reserved for either party to this proceeding to approach the

Court on three days’ notice for further directions if required.

‘Associate Judge Gendall’