Tomai v Toka
[2019] NZHC 1716
•19 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-2800
[2019] NZHC 1716
BETWEEN CATHERINE ISOBEL TOMAI and WARREN ERIC MATTHES
Plaintiffs
AND
JENNIFER TOKA
First Defendant
FRASER WIREMU HONE TOKA
Second Defendant
Hearing: 19 July 2019 Counsel:
Mr A M Swan for the Plaintiffs
Mr W C Pyke for the First Defendant
Judgment:
19 July 2019
ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH
This oral judgment was delivered by me on 19 July 2019, pursuant to r 11.3 of the High Court Rules
Registrar/Deputy Registrar
Solicitors / Counsel:
Webster Law Ltd, Auckland Simpson Legal, Auckland
TOMAI v TOKA [2019] NZHC 1716 [19 July 2019]
[1] The first defendant applies under s 56(3) of the Senior Courts Act 2016 for leave to apply against an order made by Associate Judge Bell on 18 June 2016.
[2] The background to the proceeding was described by Associate Judge Bell in his Minute of 18 June 2016 as follows:
[1] In this proceeding, the plaintiffs apply under s 339 of the Property Law Act 2007 for an order for the sale of the property at 23 Shelly Beach Road, Waiheke, and for equal division of the proceeds of sale. They have applied for summary judgment.
[2] The parties are the four owners of the property. Each of them owns an equal quarter share. Jennifer Toka, the first defendant, is the mother of the other parties. Catherine Tomai and Warren Matthes are the children of her first marriage; Fraser Toka is the child of her third marriage.
[3] The legal description of the property is lot 62, Deposit Plan 24255 and it is described in identifier NA1131/201 Auckland Registry. The property is about 1000 square metres in area. It is a residential property with a house. The property originally belonged to Mrs Toka's uncle who died in 1989. A quarter share of the property was transferred to Mrs Toka in 1992. She gave a mortgage back for that share. The children obtained their quarter shares in 2017. The property has been the family home. The children are grown up and no longer live there. Mrs Toka has been in occupation throughout. Initially, Fraser agreed to the property being sold. Mrs Toka initially opposed the property being sold but she has recently instructed Mr Pyke. For this hearing, she has changed her position and now agrees that the property should be sold.
[4] There are, however, differences between the parties – between Mrs Toka on the one hand and the plaintiffs on the other as to how the property should be sold. Fraser, while present in court, does not want to take an active part on those aspects. The parties disagree as to the timing of the sale, and some other aspects. The differences between them are not matters that can be decided on a summary judgment application.
[3]In their statement of claim, the plaintiffs had sought the following relief:
(a)An order pursuant to s 339(1) of the Property Law Act 2007 for the sale of the property described as 23 Shelly Beach Road, Waiheke, Auckland.
(b)An order that the net proceeds of sale of the property be divided equally between the parties.
(c)Costs.
[4] Associate Judge Bell noted that the parties appeared to be in agreement that the property should be sold, although there were differences between them on how
that should be done. His Honour considered that those differences could not be resolved on a summary judgment application.
[5]The Associate Judge said:1
[5] Working out the details of an order for sale are matters on which there can be reasonable differences of opinion. Once there are reasonable differences of opinion, a Judge hearing a summary judgment application cannot give rulings on the merits. Instead, the matter will have to be determined in another hearing by a Justice. There is time available for hearing on 12 September 2019. I set this matter down for hearing for one day.
[6] Associate Judge Bell then went on to give directions for the filing of a statement of defence and counterclaim by Mrs Toka, a reply and statement of defence to counterclaim, and any reply affidavits. The Associate Judge made provision for the parties' experts to confer and report, and he gave directions for the filing of submissions.
[7]Having made those directions the Associate Judge said:
[7] I record these matters as well. The plaintiffs sought an order for sale. By the time of the hearing Mrs Toka accepted that there should be a sale of the property. Mr Pyke demurred about my making an order for sale today. His argument was that such an order could not be enforced because there was no detailed provisions to state how the sale should be made. Notwithstanding that, I make an order for sale but I recognise that that is declaratory in the sense that further "teeth" need to be added before it can be implemented.
[8] The Associate Judge awarded costs to the plaintiffs on the summary judgment application on a Category 2 basis, but did not award costs for the proceeding as a whole.
[9]Section 56(3) and (4) of the Senior Courts Act 2016 provide:
56 Jurisdiction
…
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20
1 Minute of Associate Judge Bell, 18 June 2019.
working days after the date of that order or decision or within any further time that the High Court may allow.
(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—
(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or
(b)granting summary judgment.
…
[10] Mr Pyke submits that the summary judgment application was in fact refused. He submits that nowhere in Associate Judge Bell's Minute did the Judge grant the application for summary judgment, and nor did the Associate Judge explicitly dismiss it. Rather, submitted Mr Pyke, the Associate Judge made a "declaratory" order and an adjournment of the proceeding for a substantive hearing. Mr Pyke went on to acknowledge that the costs order in its terms appeared to have been premised on the summary judgment application having succeeded (at least in part), but he submitted that that stands in juxta position to the direction for a substantive hearing on 11 September 2019 when a Judge can make whatever order he or she pleases.
[11] I have considered the Judge's Minute and carefully considered the memoranda and submissions of counsel. I do not accept Mr Pyke's submissions on the nature of the sale order made on 18 June 2019 (final or interlocutory). In my view, the situation was one where the summary judgment application succeeded in part. The Associate Judge made a binding order for sale, that being part of the relief the plaintiffs had sought in their statement of claim. Unless and until that order is overturned on appeal, I am of the view that it is binding on the parties. It was an order granting summary judgment (for part of the relief claimed), and any appeal against that order is governed by s 56(4)(b) of the Senior Courts Act. The effect of that provision is that no leave was necessary for Mrs Toka to appeal against the order on the basis of it being an interlocutory order.
[12] Mr Pyke submitted strongly that in making the "declaratory" order for sale the Associate Judge exceeded his jurisdiction. He submitted that the Associate Judge failed to take into account various matters he was required to take into account on a s 339 claim. It is not necessary for me to express any view on that submission, other
than to say that, even if the Associate Judge did exceed his jurisdiction in making the sale order on the summary judgment application, the excess of jurisdiction could not convert what was a binding final order for sale into an interlocutory order that required leave under s 56(3) of the Senior Courts Act.
[13] I conclude that leave was not required for an appeal under s 56(3), as the order made was an order granting the plaintiffs part of the relief they had sought, on a summary judgment application.
[14]The result is that the application for leave to appeal is dismissed.
[15] There was also an application by Mrs Toka for a stay of execution of the costs order made by Associate Judge Bell, pending appeal or a review of the order made by a Justice of the Court at the substantive hearing. At this stage there is no appeal pending,2 and I do not presently see a basis on which the costs order made by the Associate Judge on entering summary judgment for part of what the plaintiffs had claimed could be the subject of review (otherwise than by way of appeal). In those circumstances, I decline to make the order staying enforcement of the costs order.
[16] Turning to the question of costs on the present application, Mr Pyke told me that on 12 July 2019 Mrs Toka was granted legal aid for the proceeding. Certainly in respect of the period after the grant of legal aid, and absent exceptional circumstances, I do not think I have jurisdiction to make any order for costs. Nor have I received submissions from counsel on whether any costs order would be appropriate in respect of attendances prior to 12 July 2019.
[17] In the ordinary way, a party successfully opposing an application for leave to appeal would be entitled to 2B costs, but there may be other considerations in this case that would favour the issue of costs being reserved to be dealt with when the substantive proceeding is heard on 12 September 2019. A possibly relevant factor is that Mr Pyke tells me that Mrs Toka has no resources from which she could meet a costs award before the property is sold and some funds are made available to her.
2 I understand that Mrs Toka would now need to obtain an order extending the time to appeal to the Court of Appeal.
[18] I leave it to counsel to confer on costs. If an award is sought, the plaintiffs may file a memorandum within 10 working days, and Mrs Toka may file a memorandum in reply within a further five working days. I will then deal with the application on the papers.
Associate Judge Smith
0
1