FECK v PAROHINOG [2013] NZHC 3294

FECK v PAROHINOG [2013] NZHC 3294 [10 December 2013]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCIV-2013-419-813[2013] NZHC 3294BETWEEN DIWA LAPURA FECKPlaintiffAND ELSA LAPURA PAROHINOGDefendantHearing: 9 December 2013Counsel:Appearance:SA McKenna for plaintiffEL Parohinog, defendant in personJudgment: 10 December 2013JUDGMENT OF ASSOCIATE JUDGE FAIRE[on app for summary judgment]Solicitors: Frankton Law, Hamilton (J Galt)And To: E Parohinog, Auckland[1] The plaintiff applies for summary judgment.[2] The plaintiff and defendant are registered as tenants in common in respect of a property at 9 Edwin Street, St Andrews, Hamilton and identified in certificate of title SA12A.[3] The defendant currently represents herself.[4] The plaintiff's particular concern is as to her capacity to meet mortgagecommitments to ANZ National Bank Ltd, which holds a first mortgage over the subject property.[5] The parties initially were in disagreement over whether or not a sale should occur at this time. They have now agreed. The parties invite the court to make orders in reliance on s 339 of the Property Law Act 2007. I am satisfied that a sale at this stage, followed by a hearing to determine the precise entitlement of the parties at a later time is justified.[6] Accordingly, I order by consent as follows:(a) The house at 9 Edwin Street, St Andrews, Hamilton identified in certificate of title SA12A shall be sold. The reserve price shall be $442,000. The sale shall be conducted by an independent real estate agent, namely Sally Mutton of Harcourts Real Estate;(b) Daniel Harrison of the firm of Gurnell Harrison Law Ltd will act for both parties in respect of any sale;(c) The proceeds of sale shall be used to:(i) Repay the mortgage with the ANZ National Bank Ltd; and(ii) The costs associated with the sale;(d) The remaining proceeds of sale shall be placed in an independentsolicitor's trust account of Gurnell Harrison Law Ltd, solicitors ofHamilton. The remaining proceeds of sale may only be released by order of the court or agreement of the parties;(e) Leave is reserved to the parties to apply on 24 hours' notice for anyfurther order relating to the sale;(f) The plaintiff:(i) will provide a summary of all rental/board payments received from 2007 until the present time to the defendant. These payment details will be supplied no later than 30 January 2014;(ii) will provide written details of any complaints made by her to the ANZ National Bank Ltd about the defendant at any time by 30 January 2014;(iii) will advise who the ANZ National Bank Ltd employee was who granted the payment holiday in respect of the mortgage by 30 January 2014;(iv) shall file and serve an amended statement of claim by 31 January 2014 which will fully particularise all matters pertaining to the issue of entitlement to share in the proceeds of sale;(v) shall give, in the event that a sale is settled before 30 January 2014, the rental/board payment details, the complaint details and the advice of the person who granted the payment holiday in respect of the mortgage on the day of settlement to the defendant;(g) The defendant shall file and serve a statement of defence to the amended statement of claim and, if appropriate, any counterclaim by 21 February 2014;[7] Costs in relation to the summary judgment application are reserved.[8] A case management conference in person shall be held at the Hamilton High Court on 5 March 2014 at 12 noon. The following matters will be addressed:(a) Classification for the proceeding;(b) The costs category for the proceeding;(c) A summary of the issues requiring resolution at trial;(d) Discovery and, in particular, whether there has been agreement on the appropriate discovery orders to be made;(e) The pleadings and whether any further amendments in relation to them are required;(f) Whether any particular interlocutory order or direction is required;(g) The forum to discuss settlement;(h) The fixing of a trial date and the making of any trial directions that are required. The parties, or their counsel as appropriate, should have available the number of witnesses to be called and the general scope of the evidence to be covered by them so that an accurate assessment can be made of trial duration.Memoranda shall be filed on a sequential basis so that the defendant has the opportunity of commenting upon the plaintiff's summary of the trial issues. To achieve this the plaintiff's memorandum dealing with the above matters shall be filed and served on or before 26 February 2014 and the defendants' memorandum dealingwith the above matters and, in particular, commenting upon, conceding or adding to the list of issues shall be filed and served by 3 March 2014._____________________JA FaireAssociate Judge.