Trainor (aka Tofilau) v Leotuki
[2020] NZHC 3121
•25 November 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-002536
[2020] NZHC 3121
BETWEEN RONGOPAIWAHINE LOIS TRAINOR
(formerly known as RAEWYN LOUISE TOFILAU and also known as RAEWYN TRAINOR)
Plaintiff
AND
TIMOTHY JUNIOR LEOTUKI
First Defendant
STEVE TOFILAU
Second DefendantNICOLAU ALEX TOFILAU
Third Defendant
Hearing: 16, 17 November 2020 Appearances:
N W Woods for Plaintiff U Kuddus for Defendants
Judgment:
25 November 2020
JUDGMENT OF VENNING J
This judgment was delivered by me on 25 November 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Rice Craig, Papakura
Inder Lynch Lawyers, Papakura
TRAINOR v LEOTUKI [2020] NZHC 3121 [25 November 2020]
TABLE OF CONTENTS
Introduction [1]
Background [5]
Procedural history [19]
The plaintiff’s claim [25]
The defendants’ response [26]
Witnesses [28]
Issues [29]
The deeds of debt [31]
What was the family arrangement the defendants rely on? [40]
Did the defendants provide any consideration? [63]
Promissory estoppel [73]
Acquiescence [96]
Result – deeds of debt [103]
Order for sale of the property [104]
Extent of the share [106]
Nature and location of the property [107]
Other co-owners [108]
Hardship [109]
Contributions [110]
Other matters [112]
Orders [119]
Costs [120]
Introduction
[1] This is a sad case. A mother is suing three of her four sons. At issue is a modest property at 29 Leaver Place (Leaver Place), Weymouth, which they all have an interest in, and the status of debts the sons owe their mother in relation to the property.
[2] The case and the issues underlying it should have been capable of resolution. There was a settlement following an earlier mediation. Implementation of the settlement agreement was, however, subject to finance, which the defendants were not able to obtain. Matters have subsequently broken down.
[3] Rongopaiwahine Lois Trainor, also known as Raewyn Trainor, the plaintiff, seeks orders under the Property Law Act 2007 (the PLA) for sale of the property and also judgment for the debts. Timothy Junior Leotuki and Steve Tofilau, the first and second defendants, agree the property has to be sold but seek a right of first refusal, and dispute any liability to the plaintiff in relation to the debts.
[4] The third defendant has taken no steps since the mediation and is not represented. A fourth son, Taroi Tofilau, has settled all issues with his mother.
Background
[5] The plaintiff began living with Tim Tofilau (Tim Sr) in 1969. At the time Tim Sr was 40 years old. The plaintiff was 18 years old. They later married in June 1971.
[6] Raewyn and Tim Sr had four children – Timothy (Tim Jr), born 15 September 1970; Steve, born 1 December 1971; Nicolau, born 7 April 1973; and Taroi, born 11 July 1981.
[7]Leaver Place was purchased and settled as a joint family home in 1975.
[8] In 1983/1984 the plaintiff separated from Tim Sr and went to Australia. Tim Sr was responsible for the day-to-day care of the four boys from then on. The marriage was dissolved in 1986.
[9] The plaintiff remarried but separated from her second husband in 1992. She returned to New Zealand around 1994. From 2003 until about mid to late 2007 she was living in rental accommodation at Castlefinn Drive, near Leaver Place. She then went fruit picking “down the line”.
[10] The plaintiff suffered from post-natal depression and has bi-polar disorder. She has also suffered further episodes of depression and has been admitted to hospital psychiatric wards on a number of occasions during her life.
[11] By 2008, Tim Sr was diagnosed with cancer and was unwell. Mr Daisley, a legal executive from Whaley and Garnett, met with members of the family to discuss the ownership of Leaver Place which remained vested jointly in Tim Sr and the plaintiff. An agreement for sale and purchase was signed on 4 March 2008. The agreement transferred Leaver Place from the ownership of Tim Sr and the plaintiff to Tim Sr as to a half-share and to the four sons as tenants in common as to a one-eighth share each. The consideration for the plaintiff transferring her one-half share was to
be provided by each of the sons signing an acknowledgement of debt for $34,125 (in total $136,500), being one-half of the value of the property according to a QV valuation from 2007.
[12] Tim Sr died on 8 July 2008 before the transaction could be completed. His share of Leaver Place vested entirely in the plaintiff by survivorship. On 21 July 2008, a second agreement for sale and purchase was signed. The terms of that agreement recorded that the plaintiff transferred the property to her four sons in equal one-quarter shares. The consideration was provided by each of them executing a deed of acknowledgement of debt for $68,250 ($273,000 in total).
[13] At the time, Tim Jr and Steve lived at Leaver Place. The plaintiff had also returned to live there for Tim Sr’s tangi. From 2012 to the present, Steve has been living at the property. Tim Jr has also lived there from time to time after 2008.
[14] Shortly after the meeting with Mr Daisley at which the documents were signed, the plaintiff went to see another lawyer, Mr Sanders, and provided him with an authority to obtain her files. On 4 August 2008, Mr Daisley forwarded a copy of the plaintiff’s will, the July agreement for sale and purchase, and the original deeds of debt to Mr Sanders. In January 2009, Mr Sanders wrote to Mr Daisley noting that the plaintiff had not received independent legal advice and had been subjected to what seemed to be an unconscionable bargain when she had agreed to transfer the property. Mr Sanders noted that the plaintiff was living in a garage on the property at Leaver Place without running water or electricity.
[15] About this time, the plaintiff left Leaver Place after a dispute with her sons. Mr Sanders retired from practice shortly after and nothing further was done. For the next eight years the plaintiff lived at various addresses about the North Island and was working and able to look after herself.
[16] Then, in 2017, the plaintiff took advice from another lawyer, Ms Hunter, which resulted in letters of demand being sent, in September 2017, to the defendants and their brother Taroi calling up the debt.
[17] In settlement of the plaintiff’s claim against him in relation to the debt, Taroi transferred his one-quarter interest in the property to the plaintiff on 20 March 2018.
[18] The plaintiff then issued proceedings in the District Court against the remaining defendants seeking an order for sale. When issues were raised as to the jurisdiction of that Court a similar application was filed in this Court. On 18 December 2019, a mediation was held. A settlement was agreed, but its implementation was conditional upon the defendants raising finance. That never happened.
Procedural history
[19] In July 2018, the plaintiff brought a summary judgment application in the District Court seeking orders for sale of Leaver Place pursuant to s 339(1)(a) of the PLA. The defendants filed defences. During the course of the proceedings an issue was raised as to the jurisdiction for the claim, as Leaver Place had a valuation of
$530,000.
[20] To address the jurisdictional issue a claim was also filed in this Court seeking orders for sale of the property under the PLA. The defendants failed to take any steps to respond to the proceedings in this Court and the matter was allocated a formal proof hearing. At that hearing the defendants entered an appearance and sought leave to defend the claim. On 3 July 2020, Gault J declined to enter judgment by formal proof and granted leave to the defendants to defend on terms.1
[21] In the meantime, on 7 March 2019, an amended statement of claim had been filed in the District Court. The amended claim pleaded the deeds of debt, demand by the plaintiff, and sought judgment against each of Steve, Tim Jr, and Nicolau for the principal sum of $68,250, together with interest and costs.
[22] The first and second defendants then filed statements of defence in this Court on 17 July 2020. On 3 August 2020, the District Court proceedings were transferred to this Court and consolidated with the proceeding in this Court.
1 Trainor v Leotuki [2020] NZHC 1574.
[23] There were then various pre-trial applications involving the admissibility of evidence and an extension of time for the defendants to file their evidence.
[24] The Court now has all issues before it for resolution, including the plaintiff’s claim for judgment based on the deeds of debt transferred from the District Court and the plaintiff’s claim for orders under the PLA for the sale of the property and ancillary orders.
The plaintiff’s claim
[25]The plaintiff seeks:
(a)an order for the sale of Leaver Place;
(b)her share of occupation rent calculated at a rate of $450 per week from 27 March 2018 to 27 March 2019 and at $500 thereafter until the date of sale;
(c)judgment in the sum of $68,250 against each of the first, second and third defendants, together with interest; and
(d)ancillary orders providing for the terms of sale of Leaver Place and distribution of the proceeds of sale, after deduction from the defendants’ share of any judgment the plaintiff might obtain against each of the first, second and third defendants.
The defendants’ response
[26] The defendants oppose the plaintiff’s claim. The defendants say that a family arrangement was made at the time the agreement for sale and purchase and deeds of debt were executed. That family arrangement was to the effect that the plaintiff would never call up the debts. They say they acted in reliance on that family arrangement. They rely on positive defences of promissory estoppel and acquiescence.
[27] Although the defendants also pleaded performance of the settlement agreement, during the course of the hearing Mr Kuddus confirmed that the defendants
no longer rely on the settlement agreement. That was a proper concession. Gault J found at the earlier hearing that a pre-condition of the settlement agreement was finance being obtained by 28 February 2020. The first and second defendants were not able to obtain finance. The release of the defendants from the plaintiff’s claim by the settlement agreement was conditional upon the payment of the $200,000 by 21 March 2020. That did not occur. The settlement agreement does not provide a defence.2
Witnesses
[28] The plaintiff gave evidence about the family relationships and the circumstances leading to the execution of the agreement for sale and purchase and the deeds of debt. She also called a real estate agent, Ms Matete, to confirm an estimate of the value of Leaver Place and its rental income. The first and second defendants gave evidence about the family relationships and the execution of the agreement for sale and purchase and deeds of debt. They also called Mr Daisley, the legal executive involved in the transactions in 2008.
Issues
[29]The issues the Court has to resolve are:
(a)Whether an order for sale should be made under s 339 of the PLA?
(b)Are the deeds of debt enforceable against the defendants or is the plaintiff estopped from calling the debts up because of a family arrangement?
(c)Is the plaintiff barred from pursuing her claim for judgment on the basis of acquiescence?
(d)In the event the defendants are bound by the deeds of debt, should the ancillary orders sought by the plaintiff be made?
2 Trainor v Leotuki, above n 1, at [21].
[30] Although the defendants opposed the plaintiff’s claim for occupation rent, during closing submissions Mr Kuddus effectively conceded that, as a quarter owner of the property since March 2018, the plaintiff would be entitled to a share of notional rental from that time.
The deeds of debt
[31] It is convenient to first deal with the issue of whether the deeds of acknowledgement of debt are enforceable against the defendants as a number of consequences flow from the finding on that issue.
[32] The starting point is the documentation. In the agreement for sale and purchase dated 21 July 2008, the plaintiff agreed to transfer the property to her four sons in equal quarter shares for $273,000. The agreement provided:
15.0 The purchase price shall be settled as follows:
Timothy Junior Leotuki, Steve Tofilau, Nicholau Alex Tofilau and Taroi Roy Tofilau will sign Deeds of Acknowledgement of debt to Raewyn Louise Tofilau for $68,250.00 each making $273,000.00 in total being half the value of the property according to an estimate from QV valuations dated 7 May 2007.
16.0 It is the intention of the parties that the transfer to the Purchasers Timothy Junior Leotuki, Steve Tofilau, Nicholau Alex Tofilau and Taroi Roy Tofilau shall not be a gift whether in whole or part within the meaning of the Estate and Gift Duties Act 1968 and it is hereby agreed between the parties that in the event of the value of the property as at the date of this agreement being finally determined for stamp duty or gift duty purposes as a sum greater than $273,000.00 there shall be deemed to be substituted for the said purchase price a sum equal to the value so determined.
[33] Although cl 15 referred to the $273,000 being half the value of the property, that appears to be accepted as a common mistake. The QV valuation for the property as at May 2007 was $273,000. The reference to half the value of the property appears to have been carried over from the earlier agreement for sale and purchase of 4 March 2008 which dealt with the transfer of the plaintiff’s one-half share at that time.
[34] At the same time as the agreement for sale and purchase was executed on 21 July 2008 each of the defendants and Taroi signed deeds of acknowledgement of debt in the plaintiff’s favour acknowledging as follows:
1.THAT the Borrower shall repay the said sum of $68,250.00 or the balance thereof for the time being remaining unpaid to the Lender UPON DEMAND which expression shall have the meaning attributed thereto in the Fifth Schedule of the Chattels Transfer Act 1924.
2.THE Borrower will on the 31st day of March in each year become liable to pay to the Lender interest on the said loan and further advances from time to time outstanding. The interest payable shall not exceed the first mortgage interest rate charged by the Lender’s trading bank from time to time in respect of residential loans taking such rate applying at the preceding first day of October. Interest shall be calculated with quarterly rests on the last days of March, June, September and December from the date of advance. No interest shall be payable if the Lender shall fail to make written demand for payment of interest by 30th June in any year.
[35] The defendants say that, despite the express terms of the agreement for sale and purchase and the deeds of acknowledgement of debt, there was a family arrangement that the plaintiff would forgive the debts and would never call up the debt expressly acknowledged by them to be owing in respect of the transfer of the property.
[36] There are a number of difficulties with that aspect of the defendants’ case, both legally and factually.
[37] First, they face the principle of estoppel by deed. An estoppel can arise from statements of fact in a deed. The estoppel is based on the principle that when a person has made a statement of fact in a deed they will not be permitted to deny any matter they have asserted in the deed.3
[38] Although the Court did not apply the principle on the facts of the case before it, in Rabson v Gallagher the Court of Appeal acknowledged the principle of estoppel by deed and noted that it applied where an action was being taken on the deed, giving as an example a claim to recover a debt due by the other party to the deed.4
[39]In Rabson v Gallagher the Court went on to cite its earlier decision of
McCathie v McCathie in which case the Court had said:5
There is of course no question that there is an ancient rule of law now far too firmly established to be displaced other than by legislation, that in order to
3 Halsbury’s Laws of England (2014) vol 47 Estoppel at [317].
4 Rabson v Gallagher [2011] NZCA 459, [2011] NZFLR 1040 at [85].
5 McCathie v McCathie [1971] NZLR 58 (CA) at 61–62.
support an assertion by a debtor that a debt was released by the creditor it is necessary that the release should be enshrined in a deed unless consideration has passed between the debtor and creditor. It is not enough that there should be clear evidence of the release contained for example in a letter which passed between the two parties.
Later in the McCathie case the Court cited with approval the following passage of Sir George Jessel MR from Strong v Bird:6
First of all, it is said, and said quite accurately, that the mere saying by a creditor to a debtor, “I forgive you the debt”, will not operate as a release at law. It is what the law calls nudum pactum, a promise made without an actual consideration passing, and which consequently cannot be supported as a contract. It is not a release, because it is not under seal.
What was the family arrangement the defendants rely on?
[40] What, then, is the evidence the defendants rely on to respond to those legal hurdles?
[41] The parties have quite different explanations for the transaction. Steve Tofilau says that in late 2007 Tim Sr mentioned the plaintiff wished to transfer her half-share in the property to himself and his brothers in equal shares. He said he was pleased to hear their mother had “gifted” the property as they felt hard done by, owing to her absence in their formative years. She had stated she was “pleased to be doing the right thing”. Steve Tofilau also said that following their father’s death his mother re- initiated transferring her interest in the property to him and his brothers.
[42] On the other hand, the plaintiff says she initiated the transfer in 2007 because she was considering transferring her half-share to Taroi. At the time she was living just around the corner from Leaver Place in Castlefinn Drive. Her youngest son Taroi was living at Leaver Place with his father. Taroi had been taking good care of his father in Tim Sr’s retirement, taking him shopping and to the bank, sorting out his money and taking him to the doctor. Taroi would also visit the plaintiff. She would provide meals to be taken back for Tim Sr. The plaintiff realised that Tim Sr was very sick. Taroi continued to care for him. The plaintiff said she began to think she should transfer her half of the house to Taroi as a reward for what he was doing for his father.
6 At 62, citing Strong v Bird (1874) LR 18 Eq 315 at 317–318.
That then led to a discussion about transferring her share in the property to all four sons. The first agreement for sale and purchase was prepared and executed. Then, following Tim Sr’s death, it was decided she would transfer the entire property to her four adult sons. On the plaintiff’s evidence, while ownership of the property at Leaver Place was to be transferred to her sons, she never agreed to forgive the resulting debts.
[43] The plaintiff’s explanation as to the background to the transaction is the more likely as it is clear from Mr Daisley’s evidence that his initial instructions came from Taroi, albeit that Mr Daisley considered Taroi to be passing on his mother’s instructions. There was no mention of the plaintiff gifting the property to the sons in the instructions.
[44] Mr Kuddus cross-examined the plaintiff extensively about the family arrangement. While she was confused about certain issues, she was very clear on the sequence of events; namely that she had initiated the transaction because she proposed to transfer her half-share to Taroi but that the arrangements subsequently changed.
[45] The plaintiff was also firm in her evidence that she did not know anything about a family arrangement and that she never agreed that she would not call up the debts. She said she was speaking to her youngest son Taroi about their personal relationship concerning her share in the property. She thought it was between her and Taroi.7 She denied she told Mr Daisley and Steve that she wanted to do the right thing. When it was put to her that her recollection had failed her, she rejected the proposition. She said her recollection about that matter was quite good and that she knew what she was doing. She said she was advised by Mr Daisley that the property could not be transferred just to Taroi, and it was probably better to transfer her share at the time to all of the boys rather than just Taroi.
[46]The next issue is why the transaction was structured the way it was.
[47] Steve said Mr Daisley explained at the time that the plaintiff could not transfer the interest in the property outright as she would be subject to the gift duty regime. He said Mr Daisley suggested, and it was agreed by all, that they would sign the
7 Notes of evidence at pp 26–27.
agreement for sale and purchase and the deeds of acknowledgement of debt. This was the family arrangement the defendants rely on. Steve said the arrangement was that the plaintiff would never call upon the debts recorded in the deeds and the debts were to be released over time. Steve said that was because his mother wanted to acknowledge her lack of contribution to the property and to their upbringing.
[48] The references in Steve’s evidence-in-chief to the family arrangement were very general. There was no detail of when the arrangement was made, who was present, where agreement was reached, or any information of that sort. During his evidence-in-chief, counsel sought to supplement Steve’s evidence with the following question:
Q.How do you know that you were all on the same page with respect to the deeds not being – the debts not being repaid?
A.There was talk amongst ourselves because Mum had arrived at the house shortly after Dad’s passing on the 3rd. She was welcome to stay inside the house. She was there approximately, probably three weeks, so there was a lot of discussion amongst my brothers and my mother regarding the steps or the procedures that were going to be in place, in order for her to ultimately fulfil Dad’s expectations of giving the house to us four boys, which – so my mother being at the house for those three weeks, there were just talk about Dad and his past and looking at the future and that, and so that’s how it came about with discussing that, the deeds of debt were only in place or to be signed to get away from the gifting tax, …
[49] Even that further detail was general. Of note, it was not put to the plaintiff when she was cross-examined.
[50] Tim Leotuki (Tim Jr) also gave evidence. Tim Jr confirmed that he relied on the statements recorded in Steve’s evidence.
[51] The plaintiff said she must have been contacted by Mr Daisley with a view to completing the transaction. She thought the agreement had been completed earlier than 29 July. She said that she was taken by her sons to Mr Daisley’s office. She was told the documents were straightforward, pertaining to shares in the house, and all that was required was her signature. She said at the end of the signing process at Whaley and Garnett’s office, she stood up and said she was not happy. But no-one responded
so she left the office. She never received the copy of the valuation report that was referred to.
[52] The plaintiff accepted that, while she knew she had lost ownership of the house, and the boys owed her money in exchange, she did not understand the detail of the transaction and Mr Daisley did not explain it to her. Everything was undertaken at a time when she was still grieving. At that stage she was mentally unwell and on a sickness benefit.
[53] Further, the evidence does not support the defendants’ premise that the plaintiff was willing to transfer the property and gift the debts because she had not contributed to the property. The plaintiff confirmed that during the early years of her and Tim Sr’s relationship and marriage, she went to night school and then obtained a job with Databank, working a night shift. She and Tim Sr were able to buy Leaver Place through the Department of Maori Affairs, which was only possible because she was Māori. She also contributed to the household and maintained the property while she lived there from 1975 to 1982/83. She rejected the suggestion that she had not contributed to the property at all.
[54] I prefer the plaintiff’s evidence as to the circumstances of the execution of the agreement for sale and purchase and the deeds, even though she may have got the date wrong. The plaintiff was clearly unhappy with what had occurred as evidenced by her instruction of Mr Sanders shortly afterwards in late July or early August 2008.
[55] The defendants also rely on the evidence of Mr Daisley. Mr Daisley’s evidence was unsatisfactory in a number of respects. Strangely, although the Court made an order at the outset of the evidence of the plaintiff (which was repeated at the start of the second day’s hearing) excluding witnesses who were not parties to the proceeding, Mr Daisley remained in the Court and was then able to hear the plaintiff’s evidence and cross-examination. When it became apparent Mr Daisley had remained in Court despite the exclusion order, Mr Woods objected to Mr Daisley giving evidence. I ruled that Mr Daisley could give evidence but indicated the Court would take into account that Mr Daisley had remained in Court despite the exclusion order when assessing and giving weight to Mr Daisley’s evidence where it conflicted with that of the plaintiff.
The issue was highlighted when, during the course of his cross-examination, Mr Daisley actually referred to evidence given by the plaintiff when seeking to bolster his evidence on a point.
[56]As to the family arrangement Mr Daisley said:
10.In early 2008, a Transfer to convert ownership to tenants-in-common and Deeds of Acknowledgement of Debt were prepared. They were signed on 9 February 2008. It was explained to all parties that Raewyn could not simply transfer her half interest as that would constitute a gift and would be subject to gift duty. There needed to be Deeds of Acknowledgement of Debt from the four boys to Raewyn, even though it was understood she never intended to call in the debt. This was explained to Raewyn by me and the sequence of documents was also explained carefully. I was very aware that the procedure was not easy for a lay person to follow. Raewyn confirmed that she wanted to transfer her interest to her four sons and would not call in the debts.
[57]He said that following the death of Tim Sr:
13.I then met Raewyn and her sons at our offices on 21 July 2008 and once again the new transaction was carefully explained and signed step by step whereby Raewyn would transfer her full interest to her four sons equally. The parties agreed to these arrangements and they were clear that this constituted their “family arrangement”.
14.Again, Deeds of Acknowledgement of Debt were executed by each son to avoid the gifting duty, however I confirm it was never the parties’ intentions that the debts would be called upon or repaid. No gifting programme or Deeds of Forgiveness of Debt were carried out given the family relationships involved.
…
17.Raewyn initiated the entire process and wanted to transfer her interest in the property to her four sons in view of the fact that she left the family and had little to do with her sons’ upbringing. If gift duty had been abolished at that time, there would have been no loan documentation. Her interest would have gone to the sons outright.
18.I regarded this whole matter as a family transaction, and the sons gave up potential claims against Raewyn in respect of the property, and via Tim [Sr’s] Estate.
[58] Despite Mr Daisley’s evidence that he explained the documents to the plaintiff, I am satisfied the plaintiff did not fully understand the import of the documents. There was a clear conflict of interest, which Mr Daisley failed to recognise, in that the plaintiff was transferring a property to her four sons in circumstances where she was
not receiving any money but rather was receiving acknowledgements of debt. Also Mr Daisley was unaware of the plaintiff’s mental health issues. He was unable to satisfactorily answer those issues. Further, during cross-examination Mr Daisley accepted that he dealt directly with Taroi, not the plaintiff, about the transaction. Given that the transaction led to a transfer of the plaintiff’s interest in the family home, it is notable that Mr Daisley did not take instructions from her directly or refer her for independent advice given he was acting for Taroi and his brothers.
[59] The thrust of Mr Daisley’s evidence on the main point was that the agreement for sale and purchase and the deeds of acknowledgement of debt were only prepared to avoid liability for gift duty and did not record the actual agreement between the parties. Although Mr Woods put to him that the documents were a sham, documents are only a sham if all parties to the transaction intend to create different rights and obligations from those evidenced by the document.8 In this case the plaintiff considers the documents do reflect the actual agreement so they are not a sham. Nevertheless, the point is that Mr Daisley accepted he was prepared to draft documents with the intent and purpose of evading liability for gift duty. His reason for not recording the supposed family arrangement in writing was not convincing. He said he did not do that as there would then be two contradictory written documents. He seemed to consider there was no contradiction or issue with there being two contradictory agreements provided one was only an oral agreement.
[60] Mr Daisley’s subsequent actions (or inaction) do not support his evidence that, despite the express wording of the documents, the plaintiff was gifting the purchase price to her sons. For example, there was no reporting letter to the parties setting out the arrangement and no gift statements were ever prepared.
[61] I consider that, regrettably, Mr Daisley’s evidence also contained elements of ex post facto reasoning to justify his own actions at the time.
8 Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2008] NZSC 115, [2009] 2 NZLR 289 at [33]; and Snook v London & West Riding Investments [1967] 2 QB 786 (CA) at 802.
[62] In conclusion on this point, I do not accept that there was a family arrangement or an agreement consented to by the plaintiff that she would never call up the debts or that she would forgive them.
Did the defendants provide any consideration?
[63] I turn to the issue of whether the defendants provided any consideration for the alleged forgiveness of debt by the plaintiff.
[64] The defendants suggest that the consideration for the plaintiff releasing them from their obligations under the deeds of debt was that they gave up the opportunity of pursuing claims against her on behalf of their father’s estate under the Property (Relationships) Act 1976 and/or for arrears of child support.
[65] The first obvious point is if the defendants were indeed giving up rights to such claims, that could have been recorded in the documentation at the time to either reduce or satisfy the sale price. There is no evidence of any such demand or discussion between the parties at the time the agreement for sale and purchase and deeds of debt were entered.
[66] It was not put to the plaintiff in cross-examination that there was such a discussion with her as part of the transaction. The defendants’ case, as put to the plaintiff, was that she had transferred the property to her sons (and forgiven the debt back) because it was the right thing to do.
[67] Mr Daisley said in very general terms that the sons gave up claims but he did not provide any details. The evidence there is about such claims is vague, and in the case of Mr Daisley appears to have been raised for the first time after the event, in an email to Taroi in February 2009. That email was sent on receipt of the letter from Mr Sanders of 27 January 2009. Mr Daisley asked Taroi the following questions:
1)Whose idea was it in the first place for your mother to transfer her share of the house to you and your brothers? If it was your mother’s idea, when did she first suggest it and how did the idea come up? If it was the idea of you or Steve, what did you say to your mother and what was her reaction. Or was it your father’s idea?
…
6)Tell me about the Child Support Payments? From what date did your mother start paying them? Do you know how much she owes?
…
The reason for these questions is to counter the bit about a Relationship Property Claim.
As mentioned, your mother could make things difficult if she called up the loans or demanded interest. That is partly why I would like to know how much she owes IRD for Child Support.
[68] The clear inference from this email is that Mr Daisley was concerned at the suggestion the plaintiff (rather than Tim Sr’s estate) might have had a relationship property claim. It further suggests that the parties had not given up a claim in relation to child support in order to enter the agreement because Mr Daisley was seeking information about that issue for the first time, some months after the event.
[69] To the extent the defendants rely on an argument that they relinquished the opportunity of pursuing a claim under the Property (Relationships) Act 1976 on behalf of their father’s estate against the plaintiff, there are a number of other difficulties for them apart from the lack of an evidentiary foundation.
[70] Only the personal representative of the deceased may apply for orders under the Property Relationships Act. Probate was never obtained for Tim Sr’s last will. To pursue a claim in relation to the previously jointly owned property that had passed to the plaintiff as the surviving spouse would require leave under s 88(2).9 The defendants would have to show serious injustice. At the time of Tim Sr’s death the defendants were all adults and in employment. While they were beneficiaries under his will, the test of serious injustice is high.
[71] Similarly, there is no evidence that moneys due from the plaintiff to Tim Sr’s estate for past maintenance were foregone. Mr Kuddus pointed to a reference in a letter in 1989 which suggested the possibility of a claim at that time. But there was no suggestion that by 2008 there could be such a claim. By then of course Steve was 36 and Tim was 37.
9 Property (Relationships) Act 1976, ss 88(2); Kennedy v Kennedy [2017] NZHC 168; and Re Williams [2004] 2 NZLR 132 (HC).
[72] I reject the defendants’ suggestion that they provided any consideration to the plaintiff in exchange for the plaintiff forgiving their debts.
Promissory estoppel
[73] To overcome the problem of a lack of consideration the defendants next suggest that there was a promissory estoppel which prevents the plaintiff from now pursuing or relying on the deeds of debt.
The four requirements to make out a promissory estoppel are:10
(a)the creation or encouragement of a belief or expectation;
(b)reliance on that belief or expectation;
(c)detriment as a result of that reliance; and
(d)that it would be unconscionable for the party against whom the estoppel is alleged to go back on his or her word.
[75] For the first requirement there must be clear words or conduct by one party which creates a belief or expectation in the other. On the defendants’ case, the belief or expectation was created prior to entry into the agreement for sale and purchase and the deeds of debt, as the arrangement was the reason they were created. For the above reasons, the defendants face difficulties in this regard on the evidence. Further, as the Court of Appeal observed in Hickman v Turn and Wave Ltd:11
[213] In a contractual setting, a promissory estoppel argument more commonly arises post-contract when one party promises the other that an existing contractual provision will not be enforced. It is well established that a pre-existing contractual relationship is not necessary before promissory estoppel may operate. But it is less common and more difficult to establish promissory estoppel on the basis of a pre-contractual promise or representation. This is because the party seeking to establish the representation faces obvious evidential difficulties in proving a promise not to enforce a contractual provision when that party subsequently signs a contract in which he or she agrees to perform the relevant obligation notwithstanding
10 Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407, [2014] 3 NZLR 567 at [44]. See also Engini Ltd v NZNet Internet Services (in liq) [2016] NZHC 1220.
11 Hickman v Turn and Wave Ltd [2011] NZCA 100, [2011] 3 NZLR 318 (footnotes omitted).
the claimed promise that he or she would not have to do so. In such circumstances, statements made in pre-contractual negotiations may be overtaken and contradicted by the written contract.
[76] In the course of that passage the Court referred to the decision of Krukziener v Hanover Finance Ltd where the Court had said the following about promissory estoppel:12
[37] Promissory estoppel was traditionally concerned with promises to refrain from exercising pre-existing contractual rights: Ajayi v R T Briscoe (Nigeria) Ltd [1964] 1 WLR 1326 (PC). The promise had to be clear and unequivocal: Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] 1 AC 741 at 768 (HL). The legal rights were suspended, and might be resumed on giving notice, so long as the promisee could resume its former position: Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India [1990] 1 Lloyd’s Rep 391 at 399 (HL).
[38] Following the decisions of the High Court of Australia in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 and The Commonwealth of Australia v Verwayen(1990) 170 CLR 394, promissory estoppel is no longer confined to promises affecting pre-existing rights. However, the departure from a voluntary promise is not unconscionable in itself, even if detriment results. Rather, equity responds to the defendant creating or encouraging an assumption in the plaintiff, and its knowledge that the plaintiff will rely on the assumption to its detriment. The plaintiff must have been led to believe that the promise would affect or result in legal relations; thus a promise made in negotiations that are subject to contract will not lead to an estoppel: Waltons Stores at 406 and 422. Lastly, equity does not intervene to satisfy the promise, but to avoid the detriment. These requirements in the current authorities, as the High Court recognised, are seen as necessary to preserve the law of contract as the principal mechanism for the enforcement of promises.
[39] In this case, Mr Krukziener would have it that a representation was made in pre-contractual negotiations, and that to Hanover’s knowledge he acted to his detriment by entering into the contract on terms inconsistent with the representation. He relies on the negotiations, in other words, not to show a voluntary promise to refrain from existing pre-existing rights, nor to show that Hanover promised to create a new legal relationship, but to contradict the contract that followed the negotiations.
[40] In these circumstances, Mr Gilbert recognised that the defence of promissory estoppel faces difficulties. Even if true, the facts asserted by Mr Krukziener could not establish a promissory estoppel. The doctrine is concerned with circumstances in which the Court will enforce a voluntary promise to create legal relations, or to refrain from exercising pre-existing legal rights. Where negotiations result in a contract, the promises exchanged are no longer voluntary, and the question whether the contract will be enforced falls to be determined under the law of contract. We conclude that the defence of promissory estoppel is not available in law.
12 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162.
[77] The passages in [39] and [40] from Krukziener are directly applicable to the present case. The defendants seek to rely on pre-contractual discussions, not to show a promise by their mother to refrain from exercising pre-existing rights, but rather to contradict the express terms of the subsequent agreements for sale and purchase and the deeds of acknowledgment of debt.
[78] The family arrangement alleged is that the plaintiff agreed she would not call up the debts despite the express terms of the agreement for sale and purchase and the deeds of acknowledgement of debt.
[79] The evidence of the witnesses and documentary evidence taken overall leads me to conclude that the issue of whether the loans would ever be called up was not directly addressed at the time. Certainly there was no such family arrangement or representation by the plaintiff that they would never be called up in the future. The focus was on transferring the property to the sons without the sons having to, at that time, part with any money to achieve that result.
[80] Apart from the above reasons, there are a number of other aspects to the evidence that support such a conclusion. First, there was Mr Daisley’s email to Taroi in early 2009 seeking further instructions from him to effectively bolster and shore up the rationale for the transaction, which as noted, concluded with the following comment:
As mentioned, your mother could make things difficult if she called up the loans or demanded interest. That is partly why I would like to know how much she owes IRD for Child Support.
[81] There was no suggestion in that communication that the plaintiff had given up the right to call up the debts. During cross-examination of Mr Daisley about the email there was the following passage:
Q. But even if I take you to your email of the 5th of February 2009 again, which is at page 571, if I take you to the end of that 572 penultimate paragraph, there you write to Taroi as follows: “As mentioned, your mother could make things difficult if she called up the loans or demanded interest.” So is it right to say that as at February 2009, it was your understanding that Raewyn Trainor had the right to call up those loans and demand interest?
A. Yes, yes.
[82] Even before the formal demands were made, when Ms Hunter requested the files from Mr Daisley earlier in 2017, he replied by email of 28 April 2017. His email included the following:
5.Copies of the loan documents between Raewyn and her sons. The loans have not been forgiven.
The wording suggests the loans were still owing rather than forgiven. Mr Daisley’s explanation for using such terminology was not convincing.
[83] Next, the defendants accept that Taroi was the one who contacted Mr Daisley and appears to have initiated the transaction and instructed him as to the plaintiff’s wishes. It might be assumed he had the best understanding of all the brothers about the transaction. It is relevant that in those circumstances Taroi did not oppose the plaintiff’s demand for repayment of the $68,250 but rather, in satisfaction of her demand, he transferred his one-quarter share in the property to the plaintiff. The inference to be drawn from that is that he accepted the plaintiff was able to make the demand.
[84] Next, if the defendants’ position was that it was the clearly understood agreement that the defendants were never to have to pay the debts’ demand, one would have expected them to have immediately responded in that way when Ms Hunter made demand for the $68,250 on 4 September 2017. However, neither Steve nor Tim Jr responded by saying there was a family arrangement that the debts would never be called upon, or that the property had been an outright gift.
[85]Steve Tofilau’s first response was an email of 28 September in which he said:
Apologies for the delay in responding to your communication.
We have had trouble coordinating a response, concerned parties are in Australia and Japan and it has been difficult to organise.
Certainly hoping to come to a resolution as soon as possible and we thank you for your patience. Mediation will be ideal to find a resolution that each party will find equitable for all.
[86] Then later, in response to a further letter to the current defendants on 25 June 2018, in which Ms Hunter advised proceedings would be commenced as there had been no further progress, Mr Daisley wrote on behalf of Tim Jr. His response was in the following terms:
We have been contacted by Tim Tofilau who tells us that he and his two brothers will try and raise a mortgage over 29 Leaver Place to repay the debts they owe your client.
Would you please confirm that you are acting for Ms Trainor.
We do not have a timeframe. The Tofilaus are working through a mortgage broker.
[87] Again, there was no suggestion that the debts were not repayable upon demand or that there was any family arrangement. Indeed, the email expressly states, and records an action which acknowledges, the debt was owing.
[88]On 6 November 2018 Steve Tofilau sent an email direct to Ms Hunter:
Tim and I are offering 300,000 to my mother as final payment. Based on finances from bank.
We have conditional offer from bank based on a few conditions. If this fails we will be going to bank to sort out another proposal. We have been liaising with brokers for the last few months.
Now I heard my other brother has signed his share over. Can please inform my mother of our offer.
[89] There followed the mediation meeting which led to the agreement for payment of $200,000 to the plaintiff by the defendants and an additional $50,000 to be paid by Whaley and Garnett to the plaintiff.
[90] Finally, on this aspect of the evidence, during the course of the hearing Mr Kuddus introduced text messages that had passed between the plaintiff and Steve. The text messages became admissible. The messages from the plaintiff include the following:
Steve I told you to email jane an you tim nick owe me what is on the papers that I signed nothing else what r u doing if it goes go court you may be paying a lot more.
What you an tim want me to do is out of the question I just want my money you 3 owe me
That house is your problem to fix it even Taroi says it’s wrong to make me pay for it clean up the garage an fix it up
On 29 August the plaintiff sent the following message:
You must pay what you 3 owe me that’s it
And Steve replied:
3x 67,000 = 200,000 you choose what you want to build, we don’t have a say, it’s what you decide, we told you that on Sunday.
[91]Then on 4 November a message from Steve:
I’m so glad we spoke today mum, so nervous and worried about the sale of the house. Now we can move forward together as a family. 300,000 our final settlement. glad we talked and cried haha so much Better. xx
[92] The last message was consistent with Steve’s email to Ms Hunter on 6 November 2018. Again, not even in the informal messages passing between Steve and his mother was there any reference to the loan never having to be repaid.
[93] Finally, and in any event, the defendants have not acted to their detriment by entering the agreements for sale and purchase, the deeds of debt and by spending the limited amounts they have on the property.
[94] Steve says that had he known the debts were not forgiven and his mother would seek repayment, he would not have entered the family arrangement and would not have spent time, money and effort on the property. However, there was a direct benefit to him and his brothers in the transaction. The price was fixed at its 2007 value and the property was transferred to him and his brothers without them having to pay anything for it at that time. The property was theirs to deal with in whatever they wished. They have had the benefit of the property from 2008 on.
[95] The defendants are not able to establish that the plaintiff created or encouraged a belief or expectation that they would not have to repay the debt or that they relied on any such belief or expectation to their detriment. For the foregoing reasons also, the defendants fail to satisfy the Court they relied on any such representation in any event. They gave nothing up, they simply improved their position by gaining a share in a property without having to pay for it. The claim that the plaintiff is estopped from enforcing the deeds of acknowledgment of debt is not made out.
Acquiescence
[96] The defendants also plead acquiescence as a positive defence. They plead the plaintiff acquiesced to the family arrangement and delayed in seeking to enforce the deeds for nine years so that it would now be unconscionable for her to seek to enforce the debts.
[97] To the extent that the acquiescence relies on the family arrangement, it must fail on the evidence for the above reasons.
[98] Further, at no time has the plaintiff said or given any reasonable cause for the defendants to believe that she would waive, surrender or forego her right to call up the debts.
[99] The plaintiff has explained why she did not immediately call up the debts. She did not pursue matters with Mr Sanders as, about the same time as Mr Sanders received the reply from Mr Daisley on 18 March 2009, he told her he was unwell and was retiring from the practice.
[100] At that time in 2009, the plaintiff was still in employment and did not need the money. The plaintiff simply did not have the need to call the debts up earlier as she was in employment and, while living in constrained financial circumstances, was able to look after herself. That is no longer the case. She has been made redundant and now needs the money. The defendants have enjoyed the benefit of living in the property without having to raise money to pay out the plaintiff for a number of years and have enjoyed the inflationary increase in the value of the property.
[101] The fact the plaintiff has not acted to call up the debts for nine years or so is also irrelevant. The debts were repayable upon demand. The Limitation Act 2010 makes it clear that the limitation period only begins to run once a demand is made.13 While in some cases acquiescence (or laches) may bar a claim on equitable grounds, even where time has not expired under the Limitation Act, the converse can also be
13 Limitation Act 2010, s 5(1)(a).
true.14 A claim barred by the Limitation Act may not otherwise have been barred by acquiescence.
[102] In this case the pleading of acquiescence adds nothing to the defendant’s pleading of promissory estoppel. As the defendants cannot make out a promissory estoppel, the pleading of acquiescence cannot succeed either.
Result – deeds of debt
[103] The plaintiff is entitled to judgment against each of the three defendants for the principal sum owing by them to her of $68,250, together with interest at the rate of
5.75 per cent from 1 April 2018.15
Order for sale of the property
[104] I turn to the remaining orders sought. The application for orders for the sale of the property is made under s 339 of the PLA. On an application by one co-owner the Court may make any one of the following orders:
(a)for the sale of the property and the division of the proceeds among the co-owners; or
(b)for the division of the property in kind among the co-owners; or
(c)requiring 1 or more co-owners to purchase the share in the property of 1 or more other co-owners at a fair and reasonable price.
[105] The Court may only make one of the above orders having regard to the matters in s 342:
342Relevant considerations
A court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:
(a)the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:
14 Official Assignee of Collier v Creighton [1993] 2 NZLR 534 (CA); and Matai Industries Ltd v Jensen [1989] 1 NZLR 525 (HC).
15 The plaintiff’s evidence was the bank rate as at date of demand was 5.75 per cent.
(b)the nature and location of the property:
(c)the number of other co-owners and the extent of their shares:
(d)the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:
(e)the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:
(f)any other matters the court considers relevant.
Extent of the share
[106]The plaintiff is an owner as to a quarter-share.
Nature and location of the property
[107]The property is a residential property in Weymouth.
Other co-owners
[108] The first and second defendants each own a quarter. The third defendant also owns a quarter but has taken no steps to see the matter resolved and has not appeared to oppose the plaintiff’s claim.
Hardship
[109] The plaintiff is currently in an entirely impoverished state. The only way the plaintiff can be repaid the moneys she is owed, and needs to provide for herself, is from the proceeds of sale of the property. Against that, a sale of the property will lead to a degree of hardship to the first and second defendants, the second defendant in particular, having regard to the fact it is his home.
Contributions
[110] The second defendant produced evidence of some expenses spent about the property. They are modest and only of the sort of maintenance and general expenses one would expect a homeowner to incur in order to maintain the property generally. Apart from those expenses the annual rates and insurance would be significantly less
than the accommodation costs or rental that could have been achieved from the property.
[111] The short point is that since 2008 the defendants have had the use and enjoyment of the property without having to pay to acquire it. Apart from the usual outgoings of rates and insurance, the other matters that they have raised and seek compensation for are matters such as painting and installation of security systems. Painting would usually be carried out as part of the regular maintenance and upkeep of a property. Further, they have had the absolute and unfettered right to use the property for their own ends until at least the plaintiff obtained her one-quarter interest. The Court is not minded to make any allowance to the defendants for the lengthy period of time they have enjoyed the property, paying only rates, insurance and modest maintenance towards it. There have been no significant capital improvements made to the property.
Other matters
[112] As noted, without the sale there is no other basis or means for the plaintiff to be paid out. The parties are at an impasse. Importantly, the defendants now accept the property will have to be sold. Mr Kuddus confirmed that the defendants do not oppose an order for sale.
[113] The Court is satisfied that orders for the sale of the property are appropriate despite the effect on the first and second defendants in particular. I do not consider it realistic to provide for the defendants to have right of first refusal to purchase the plaintiff’s quarter-share with the third defendant’s share held in trust while the defendants obtain finance to purchase that as well. The first and second defendants have had ample opportunity to resolve the issue but were unable to come to an arrangement with the third defendant or obtain finance to purchase the plaintiff’s share. I am satisfied that it is appropriate to exercise the discretion in favour of the plaintiff and to order the sale of the property.
[114] The issue is whether the ancillary orders sought by the plaintiff should be made. Section 339(4) confirms that on an order for sale, the Court may make a further order specified in s 343.
[115]Section 343 provides:
343Further powers of court
A further order referred to in section 339(4) is an order that is made in addition to an order under section 339(1) and that does all or any of the following:
(a)requires the payment of compensation by 1 or more co- owners of the property to 1 or more other co-owners:
(b)fixes a reserve price on any sale of the property:
(c)directs how the expenses of any sale or division of the property are to be borne:
(d)directs how the proceeds of any sale of the property, and any interest on the purchase amount, are to be divided or applied:
(e)allows a co-owner, on a sale of the property, to make an offer for it, on any terms the court considers reasonable concerning—
(i)the non-payment of a deposit; or
(ii)the setting-off or accounting for all or part of the purchase price instead of paying it in cash:
(f)requires the payment by any person of a fair occupation rent for all or any part of the property:
(g)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).
[116] In terms of distribution of the proceeds, the plaintiff seeks orders that the quarter-shares of the defendants be held in trust and money owing to the plaintiff be deducted from the moneys due to the defendants before their shares are paid out to them.
[117] While such orders are not commonly made, I accept they are appropriate in this case. The alternative would be to leave the plaintiff to have her advisers issue charging orders against the proceeds of sale in the solicitor’s trust account which would only add to the legal costs of all parties and further reduce the net sum available to all the parties.
[118] The plaintiff also seeks rental for the use of the property from the time that Taroi transferred his one-quarter share in the property to her in March 2018. Ms Susan Matete’s evidence confirms the rental at $450 a week to 31 March 2019, and thereafter
$500 per week. To 31 December 2020, the notional rental would total $68,500. However, a deduction to recognise the plaintiff’s notional one-quarter share of rates and insurances is appropriate. At say, $4,000 per year for such expenses, the net rental would be approximately $57,500. The plaintiff’s one-quarter share is $14,375 to 31 December 2020. Given other costs and expenses associated with tenants, that seems a reasonable figure for the rental due to the plaintiff for her quarter-share of the property.
Orders
[119] I am not prepared to make an order for a right of first refusal in favour of the first and second defendants. If the defendants are able to organise their circumstances, they can bid at any auction or make an offer. However, given the history to this matter and the age of the plaintiff, any further delay should be avoided. There will be orders in terms of the draft attached.
Costs
[120] Both counsel agreed that costs should follow the event. Mr Woods argued for indemnity or increased costs from the date of the mediation. I accept, however, that the first and second defendants were not able to resolve the issues at mediation because of complications with the third defendant. While the concession that the property should be sold came late in the piece, the main focus was always going to be on the moneys owing under the deeds of acknowledgment of debt. I do not accept the defendants’ actions are such that they warrant an award of anything other than scale costs on that issue. Further, given the background circumstances to this case, I am not prepared to make such an order. The defendants are, however, jointly and severally liable to pay the costs of the plaintiff on a 2B basis together with disbursements as fixed by the Registrar.
Venning J
GENERAL COURT ORDER
Before the Honourable Justice Venning
After reading the Statements of Claim, and the Statements of Defence filed, and after hearing of the Application and Umar Kuddus Counsel for the Defendants and Neville Woods Counsel for the Plaintiff, this Court orders:
1.The property at 29 Leaver Place, Weymouth, Manukau, more particularly described as an estate in fee simple containing 638 square metres more or less being Lot 42 Deposited Plan 70363 being all the land comprised and described in Identifier NA27 A/657 (North Auckland Land Registry), be sold and the net sale proceeds thereafter be distributed amongst the parties in accordance with their legal share(s) in the property, subject to paragraph 2 below.
2.Pursuant to Section 339(4) and 343 of the Property Law Act 2007:
(a)Barfoot & Thompson shall be appointed the sole and exclusive agency in relation to the sale of the property. Barfoot & Thompson shall provide the parties with an appraisal and proposed particulars and conditions of sale of real estate by auction/private treaty for the parties' consideration on or before 1 December 2020 with the sale programme to provide for a sale no later than 20 January 2021.
(b)Andrew Hopping, Registered Valuer of Marsh & Irwin Limited, or such person as he directs, is to be appointed the registered valuer to:
(i)Provide a registered valuation.
(ii)Set a recommended sale price on the basis of market value as determined by Marsh & Irwin under current market conditions.
(c)The property shall be sold by private auction or by private treaty, either before or after such auction with the recommendation of Andrew Hopping that the best price is achieved being final and binding upon the parties.
(d)Any party may purchase the property by private treaty and any party may bid at the auction of the property.
(e)Marsh & Irwin shall, in consultation with Barfoot & Thompson, nominate a reserve price for the property, such reserve price being final and binding upon the parties.
(f)Rice Craig, Solicitors of Papakura, shall be appointed to act as the vendor's solicitor in relation to the sale of the property.
(g)The Defendants shall do all things reasonably necessary to affect the sale of the property, and more specifically:
(i)at reasonable times make the property available to be inspected by prospective purchasers; and
(ii)sign all documents required to complete AML requirements; and
(iii)sign the required A & I form to transfer the said property; and
(iii)sign all and any Agreement for Sale and Purchase as sold under this Order.
(h)The reasonable expenses of sale and readying the property for sale are to be borne by the parties in proportion to their respective legal share(s) in the property.
(i)The First and/or Second Defendant may continue to occupy the property to the date of settlement (the property being sold with vacant possession), on the basis that the occupant(s) meet payment of all rates, water charges, insurances and other outgoings payable in respect of the property running from the date of judgment until the date of settlement.
(j)That on the settlement date the Defendants shall cease to occupy the property and henceforth surrender possession (subject to the vendors written consent or otherwise).
(k)The proceeds of sale of Leaver Place, net of land agent's fees, GST, legal fees and disbursements and any other costs incurred to achieve the sale, shall be divided into four equal shares with three of such shares applied to pay for:
(i)Any rating, electricity, water rates and insurance outgoings required to be met upon settlement of the sale equally from each of the shares;
(ii)The sum of $68,250 (against each named Defendant severally) plus interest on $68,250 at a rate of 5.75% per annum running from the 1st of April 2018 to the date of settlement, deducted from each of the shares and paid to the Plaintiff;
(iii)The occupation rental and costs specified in paragraphs (m) and (n) below, to be met in equal shares upon settlement of the sale and paid to the Plaintiff. The balance, if any, to be paid in equal shares to the Defendants.
(l)And further the fourth such share, together with the sum in (k) above, and in addition any costs due to her and any occupation rent as specified below, to the Plaintiff.
(m)Judgment to the Plaintiff in the sum of $14,375 in compensation for market occupation rental.
(n)Costs as directed by the Court on a 2B basis plus disbursements as fixed by the Registrar.
3.Leave is reserved to the parties to apply for further directions regarding the implementation of these Orders.
Dated:
Deputy Registrar
0
0