OFFICIAL ASSIGNEE V FARESA HC AK CIV 2007-404-007920

OFFICIAL ASSIGNEE V FARESA HC AK CIV 2007-404-007920 13 February 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-007920BETWEEN OFFICIAL ASSIGNEE Plaintiff/Applicant AND ELENISE LINDA FARESA Respondent Hearing: 13 February 2007 Appearances: Miss Eastwick-Field for Plaintiff/Applicant No appearance for the Respondent Judgment: 13 February 2008JUDGMENT OF WINKELMANN JSolicitors: Crown Solicitor, P O Box 2213, Auckland[1] The Official Assignee seeks summary judgment in respect of a claim for an order for sale of a property in which the estate of a bankrupt, Frederick Louis Edward Craigie has an interest. There is no appearance today for the respondent. [2] The facts as they emerge from the affidavit material filed in support of the application are that the Official Assignee is the trustee in bankruptcy of the estate of Mr Craigie. Mr Craigie was adjudicated bankrupt on 11 October 2006. He is the registered proprietor, together with his wife Ms Elenise Linda Faresa, of a property at 131 Station Road, Papatoetoe, Auckland, Catholic Tribunal NA812/34 (North Auckland Registry). [3] Upon his adjudication by operation of law, Mr Craigie's interest in the property were severed from that of Ms Faresa, and vested in the Official Assignee. Ms Faresa continues to reside at the property. The Official Assignee has corresponded, offering her the opportunity to purchase the bankrupt estate's share of the equity in the property. The correspondence commenced in January 2007, and continued through to 30 May 2007. Ms Faresa has not responded to this correspondence. [4] The Official Assignee now seeks an order that the property be sold under his control and conduct and that the costs associated with that sale, and the amount owing under a mortgage secured against the property, be deducted from the proceeds. After that, that half of the balance be paid as to Ms Faresa and half to the Official Assignee. A further order is sought that the Official Assignee be entitled to deduct the costs of the application plus disbursements from Ms Faresa's half share. [5] As an additional protection for Ms Faresa, an order is sought that these orders in relation to sale be stayed for a period of 28 days from the date of the grant of the order to enable the defendant to make an offer to acquire the plaintiff's interest in the property. [6] The application was initially brought under section 140 of the Property Law Act 1952 and replaced with the Property Law Act 2007 (the Act). The 1952 Act has now been repealed but by reason of the Act's transitional provisions (s 367), theCourt retains power to order sale and make such of the ancillary orders provided for in s 343 of the Act to effect that sale as may appear necessary. [7] I note that the mortgagee has not been served with a copy of the proceeding. Under s 341(3), the Court may dispense with service where satisfied it is appropriate to do so. In this case, the order sought adequately protects the interest of the mortgagee such that I am satisfied that service on the mortgagee may be dispensed with. [8] I have considered the application in light of relevant considerations which the Court is directed to under s 342. I consider that the form of order sought, with some modification, adequately meet concerns regarding hardship to be caused to Ms Faresa. I am satisfied with that modification and the order sought should be made. [9] The orders I propose to make are as follows: a) service of these proceedings on the mortgagee is dispensed with; b) the property, being the property at 131 Station Road, Papatoetoe, Auckland (lot 16, DP20968, more particularly described in Certificate of Title NA812/34, North Auckland Registry) be sold by public sale, under the control and conduct of the Official Assignee and in accordance with these orders; c) in the event that the defendant fails or refuses to sign any authority to sell, agreement for sale and purchase, memorandum of transfer or other document required to carry out or effect the sale of the property, the plaintiff is hereby authorised to execute such document or documents for and on behalf of the defendant; d) within 30 days of being served with the notice that an unconditional agreement for sale and purchase being entered into in respect of theproperty, the defendant shall give up vacant possession of the property to the plaintiff; e) that the proceeds of sale of the property be disbursed in the following priority and manner: i) payment of the amount due and owing as at the date of payment under the mortgage secured over the property; ii) payment of any real estate agent's commission and legal fees incurred by the vendor for conveyancing in connection with the sale; iii) subject to order (e)(iv) below, any balance shall be paid one half to the defendant and one half to the plaintiff; iv) from the defendant's one half share, the cost of this application plus disbursements which are fixed at $7,448.39 (are calculated on a 2B basis and detailed in counsel's memorandum of 13 February 2008) shall be deducted by the Official Assignee and retained by him; f) the orders set out in (e) above are to be stayed for a period of 28 days from the date of service of those orders upon the defendant to enable the defendant to make an offer to acquire the plaintiff's interest in the property; g) the plaintiff has leave to apply for further directions. [10] I have not dealt in the form of the order with access to the property for the purposes of allowing inspection by prospective purchases. It is not clear to me from the documentation what access the Official Assignee will require. It is obviously in Ms Faresa's interest that she allow access for this purpose so as to maximise the price to be realised in relation to the property. If this access is not able to benegotiated between the Official Assignee and Ms Faresa, then the Official Assignee may apply for further ancillary orders if required. Winkelmann J