Western v Abdoelrahman HC Auckland CIV 2010-404-2998

[2010] NZHC 1851

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-002998

UNDER  sections 339(1) and (4), 341(1)(a), and

343(ag)-(g) of the Property Law Act 2007 and High Court Rules 12.2 and 12.4

IN THE MATTER OF     an application for the sale of property and the division of proceeds among co-owners

BETWEEN  LAMBERTUS WESTEN Plaintiff

ANDSHAHIDA QUEREISHI ABDOELRAHMAN AND ADAM RASHAAD JAMES KERR Defendants

Hearing:         11 October 2010

Counsel:         AE Hansen for plaintiff

DJK Mitchell for defendants

Judgment:      11 October 2010 at 10:20am

(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application to set aside protest to jurisdiction]

Solicitors:           Heimsath Alexander, PO Box 105 884, Auckland 1143

Turner Hopkins, PO Box 33 237, Auckland

WESTEN V ABDOELRAHMAN AND KERR HC AK CIV 2010-404-002998  11 October 2010

[1]      The plaintiff has filed an application seeking orders in respect of a property owned by the plaintiff and the defendants as tenants in common at 29 English Oak Drive, Albany.

[2]      The title produced discloses shares in the property as follows:

The plaintiff   1,419/2500 share

ARJ Kerr       27/2500 share, and

SQ Abdoelrahman     811/2500 share.

[3]      The plaintiff’s application for summary judgment relies on the Property Law Act 2007, ss 339(1) and (4) and related sections.  The principal relief sought is an order for the sale of the subject property.

[4]      No steps have been taken by the second-named defendant.

[5]      The first-named defendant filed an appearance under protest.  The protest, in essence, is that the High Court does not have jurisdiction because this proceeding relates to a dispute in respect of relationship property and should therefore be determined in the Family Court pursuant to the Property (Relationships) Act 1976, s 22(1).

[6]      The plaintiff filed an application to set aside the protest to jurisdiction.

[7]      At the request of the parties, Associate Judge Doogue made orders in relation to the application to set aside the protest to jurisdiction on 8 July 2010 as follows:

(a)       Plaintiff  to  file  and  serve  interlocutory  application  to  set  aside appearance by 30 July 2010;

(b)First-named   defendant   to   file   and   serve   any   opposition   and supporting affidavits by 13 August 2010;

(c)       Any affidavits from the plaintiff strictly in reply to be filed and served by 20 August 2010.

A fixture was made for the hearing of the application to set aside the protest and directions in relation to the fixture were made.

[8]      No papers in opposition to the application have been filed.

[9]      A  statement  of  defence  has  been  filed.    It  does  not  plead  specifically protesting to  the jurisdiction  of  the  High  Court  hearing  the summary judgment application.

[10]     The plaintiff submits the following:

a)       That there has been a submission to the jurisdiction of the High Court by the filing of the statement of defence; and

b)Even if there has not been, the basis for the jurisdictional objection, that is the subject matter is relationship property with the result that entitlement must be determined by the Family Court pursuant to the Property (Relationships) Act 1976, has simply not been made out on the material presented so far in respect of this proceeding.

[11]     Mr Mitchell, who has just received instructions, confirmed  what the file revealed.  He advises that there is no opposition to an order setting aside the protest to jurisdiction.   That approach, in my view, is a proper one.   The statement of defence that has been filed is a submission to jurisdiction.   It does not plead specifically  a  jurisdictional  objection  to  this  court  determining  the  summary judgment  application.    Accordingly,  the  application  to  set  aside  the  protest  is justified.

[12]     Counsel helpfully indicated to me the way forward with this proceeding. That part of the proceeding which relates to the first-named defendant’s position is opposed.

[13]     Accordingly, I order:

a)        The appearance protesting the jurisdiction is dismissed;

b)        In respect of the summary judgment application:

i)Notice of opposition and affidavits in opposition shall be filed and served by 28 October 2010;

ii)       Replies shall be filed and served by 9 November 2010; and

iii)      The application is adjourned to the summary judgment list at

2:15pm on 11 November 2010 at which time consideration will be given to either a fixture to dispose of the matter or, alternatively, if some other order is required, the appropriate order.

[14]     Costs in relation to the application to set aside the protest are reserved.

JA Faire

Associate Judge