AP PETHERICK AND T DENTICE AS TRUSTEES OF THE AP PETHERICK FAMILY TRUST (NO. 1) V SG PETHERICK AND GD PETHERICK AS TRUSTEES OF THE SG PETHERICK FAMILY TRUST (NO. 1) HC WN CIV-2009-485-1099

AP PETHERICK AND T DENTICE AS TRUSTEES OF THE AP PETHERICK FAMILY TRUST (NO. 1) V SG PETHERICK AND GD PETHERICK AS TRUSTEES OF THE SG PETHERICK FAMILY TRUST (NO. 1) HC WN CIV-2009-485-1099 3 August 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2009-485-1099BETWEEN ALEXA PATRICIA PETHERICK AND TREVOR DENTICE AS TRUSTEES OF THE AP PETHERICK FAMILY TRUST (NO. 1) Plaintiffs AND STEPHEN GRANT PETHERICK AND GRAHAM DAVID PETHERICK AS TRUSTEES OF THE SG PETHERICK FAMILY TRUST (NO. 1) Defendants Hearing: 3 August 2009 Appearances: B.A. Gibson - Counsel for Plaintiffs J.J. Delany - Counsel for Defendants Judgment: 3 August 2009ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALLSolicitors: BA Gibson, Solicitor, PO Box 927, Wellington JJ Delany, Barrister, PO Box 10201, Wellington[1] Before the Court is an application for summary judgment by the plaintiffs against the defendants seeking orders pursuant to the Property Law Act for the sale of a jointly owned property. This property at 234 Marine Drive, Lowrie Bay, Lower Hutt, as I understand the position, is owned as to a one-half share by the plaintiffs and as to the other one-half share by the defendants. [2] The application before the Court has been served upon the defendants. [3] Today, 3 August 2009, Mr. Delany, on behalf of the defendants, filed a document headed "Notice of Opposition" in response to the current application. [4] As I see it, that Notice of Opposition is effectively a document consenting to the majority of the summary judgment orders sought by the plaintiff. [5] At the outset, it is clear that there is no opposition advanced to the order sought by the plaintiffs pursuant to s. 339(1)(a) Property Law Act 2007 for sale of the property and a division of the net proceeds of sale equally between the plaintiffs and the defendants. An order to this effect is to follow. [6] Again there appears to be no major objection from the defendants to the further order sought by the plaintiffs that the costs of and incidental to these proceedings and incidental to the sale of the property are to be paid out of the proceeds of sale before any division is made. [7] Some disagreement, however, appears to have arisen regarding the identity of a registered valuer who is to complete a valuation of the property. I say this bearing in mind comments from Mr. Delany that an existing valuation from Quotable Value Limited was completed some time ago. This is to be dealt with, however, by way of each party obtaining their own valuation of the property from a registered valuer and then agreeing if possible upon a price at which the property is to be marketed. [8] That said the plaintiffs' application for summary judgment effectively succeeds here. [9] Orders are now made by way of summary judgment as follows:(a) An order is made pursuant to s. 339(1)(a) Property Law Act 2007 that the property at 234 Marine Drive, Lowrie Bay, Lower Hutt is to be sold with the net proceeds of sale distributed equally between the plaintiffs and the defendants. (b) The plaintiffs seek costs on this proceeding on a solicitor/client basis on the grounds that the present application was necessary and the opposition which has been filed by the defendants in fact did not occur until today, 3 August 2009. Under all the circumstances here I am satisfied that the plaintiffs are entitled to costs on an indemnity basis given that until very much the eleventh hour there was no response from the defendants to this application. Costs are therefore awarded to the plaintiffs on this proceeding on a solicitor/client basis together with disbursements as approved by the Registrar. (c) Those costs of the plaintiff of and incidental to these proceedings together with disbursements and the costs incidental to the sale of the property are to be paid out of the proceeds of such sale before any division is made between the plaintiffs and the defendants. (d) Prior to the property being listed for sale, the plaintiffs and the defendants are each to promptly obtain their own registered valuation of the property from a registered valuer (in the event that they are unable to agree upon a valuation being obtained from one registered valuer only). The cost of these valuations is to be paid out of the proceeds of such sale before any division is made between the plaintiffs and the defendants. (e) Once these registered valuations are obtained, the plaintiffs and the defendants are to endeavour to agree upon a listing sale price for the property and the method of sale to be adopted for the property. In the event that agreement on these issues is unable to be reached, leave is reserved for either party to approach the Court on 48 hours notice for appropriate directions.(f) The property is to be listed for sale with Leaders Real Estate 1987 Limited, this company being given a sole selling agency for the property for a period of 3 months and 2 weeks from today. This agency is for the purpose of marketing the property for sale at the agreed or directed price and the advertising and sale costs are to be met equally by the parties from the final proceeds of sale. This listing with Leaders Real Estate (1987) Limited is to be upon their usual terms and conditions. (g) Leave is further reserved for either party to approach the Court on 48 hours notice to determine any issues which may arise regarding the sale or otherwise.'Associate Judge D.I. Gendall'